Law in the Internet Society

There is only one way to take down surveillance capitalism: a coup from below

-- By ChetnaKumar - 11 Oct 2019

When we watch our TVs, they are watching us back and reporting on our behaviour. Our homes and workplaces are living laboratories, where a variety of censors relentlessly monitor, catalogue and learn our habits and preferences. This silent scrutiny of our lives occurs ostensibly to provide us with relevant content, personalised to our needs, to gently nudge us towards a better experience. Content can be targeted to specific personality types or perceived emotional states. It can also be designed to take advantage of already vulnerable populations. All kinds of businesses, from the New York Times to Amazon, are turning to behaviorally targeted advertising to supplement or substitute their primary sources of earnings.

But most online advertising doesn't serve our interests. Even in its less insidious, non-tracking avatar, it divides our attention and impedes our ability to focus on the things we set out to do. Surveillance and targeting are motivated by making applications more addictive, nudging us to buy more and subverting privacy protections. The most harmful ads aren't trying to sell us things we want. They are designed to undermine our autonomy by exploiting our insecurities and manipulating us into new desires and behaviours. Indeed, advertising has always sought to exploit our weaknesses. Online advertising is powerful because of its covert use of personal data to tailor messages to individuals. This clandestine manipulation is made possible by a comprehensive surveillance network of large technology companies like Facebook and Google, third-party tracking companies, and banks and retailers.

It isn't apparent what the most effective way to resist these privacy intrusions is. One could avoid vendors that rely on targeted ads and invest in tools like Pi-holes that give us more control. We can block trackers, scramble our faces and disguise our voices. However, these tactics of obfuscation do nothing to rectify the asymmetries of power and information between individuals wrestling with the complexities of data protection and the institutionalised system of surveillance. Can we do better than contesting and potentially losing the battle for privacy in every new domain? Yes, we can delegitimise the very existence of targeted advertising as a business model.

What are the regulatory options?

A regime of informed consent and the ability to opt-out of data collection, again, places an unfair burden on users. The banking industry has taught us that fines are not an effective means of disciplining large businesses.

The ad-tech market has long received anti-trust attention for being a duopoly, with Google and Facebook making up 58% of the market. Calls for breaking up these companies on anti-trust grounds have gained traction globally. However, breaking up Google or Facebook could just as well result in establishing multiple surveillance capitalists' firms, though at a diminished scale. The business model itself would remain contested and interrupted.

In the least, legislation can enforce transparency. Advertising companies can be forced to reveal how they profile people, how the data flows, and what the ads actually deliver. Businesses would have to make all the ads on their networks publicly viewable and searchable. But we can do much more than shining light on the problem. We can demand the right to review and delete data companies maintain on us, and set meaningful limits on the collection, storage and sharing.

Better yet, we can throw a wrench in the surveillance economy by securing a complete ban on advertising that targets individuals bases on their identities, behavioural and financial data.

And that will be consistent with the First Amendment how?

Complainants in the European Union are already arguing that behavioural advertising leaks such vast amounts of data on a systemic basis that it couldn't possibly be legal under EU data protection laws.

Highlighting another long-term incompatibility between current EU regulatory approaches and the free expression approach taken in the US. Unless we're going to overrule all the commercial speech cases in the Supreme Court's First Amendment jurisprudence since 1975, some other outcome is going to be necessary. Rather than passing by the problem silently, there is much to be gained by encountering it directly.

The greater legal risk may be the catalyst to restore the market towards less intrusive ads. For instance, ads that aren't targeted bases on profiling but are linked only to real-time interest and generic in location.

Is regulation a pipe-dream?

Despite an abundance of regulatory recourses, some influential academics and internet activists, perhaps best placed to advocate for regulation, are resigned that organising for regulation is futile. They posit that legislators are either incompetent or unwilling to place meaningful restrictions on the conduct of powerful corporations. Instead, they counsel us to pin our hopes on market-based and norm-based reforms.

For instance, we could try to reshape corporate norms and plead with companies that gentlemen don't read each other's mail. Alternately, we could devote ourselves to ensuring that companies like Mozilla and DuckDuckGo? that do not exploit user data become more visible and outcompete their rivals. Investing in non-tracking businesses and privacy-enhancing technologies is, of course, a worthy project. DuckDuckGo? has indeed been making profits by presenting keyword-based ads and not profiling users. And it has managed to do so in a market dominated by Google.

However, placing our reliance solely on benign alternatives is na´ve, as inherent structural imbalances are likely to prevent them from scaling. As they gain in popularity, dominant corporations have all the more incentive to use their superior resources to neutralise upcoming competitors and hide any vulnerabilities. Facebook's acquisition, and now repurposing, of WhatsApp? , and blatant copying of Snapchat should serve as grave reminders.

There is a more direct line of inquiry these suggestions obfuscate. What is it that is so broken about our political system that we are unable to address these concerns through conventional channels? And how do our elected representatives benefit from and perpetuate these violations? As Professor Zuboff cautions us, what is being taken from us is not just information we expect to be personal. Surveillance capitalism subverts the fundamental human expectation of sovereignty over one's life and authorship of one's own experience. If we want to revive the transformative potential of democracy, we will do well to rekindle our outrage. This ubiquitous and unceasing cataloguing of our words, emotions, actions and ideas to manipulate us into compliance is unprecedented and unacceptable.

The Independence of India, the fall of the Berlin Wall, the end of Apartheid, were all made possible by people who came together and said, "Enough. No More."

I"m not sure what this last thought adds to the draft. If the political events described are to be compared directly, I'm not sure that "made possible" is historically sound analysis. Opposition is a necessary but hardly sufficient condition for the collapse of Empire on any of these scales.

I think the strongest route to improvement here is tighter focus. The present draft depends on an implicit premise that changes in individual behavior joined to provision of better technological alternatives would not suffice to ameliorate the most important social harms in the present situation. Perhaps that should be made explicit, and the limits of whatever your evidence is for that conclusion outlined. I'm not sure I completely disagree, but I know that absolutely inexpensive computers costing less than a cellphone charger costs; equipped with free software that anyone can copy, modify, improve and redistribute without payment; along with bandwidth that is less costly to deliver and can be more fairly distributed would make a network of pervasive, inexpensive, privacy-respecting services for individuals possible. So I know that we can provide ourselves with the equivalents of the mail, calendar, social sharing, etc., that we need, without dependencies on businesses offering services in return for behavior collection. Why, at that point, should I conclude that I need government more to engage in regulating the businesses, which are rich and will fight back forever, more than I need government to help educate people how to make better choices (which everyone agrees is government's job) ? If the state taught people how to use services made from sharing and without privacy-violation, and helped defend our efforts from the anti-competitive efforts of the platforms to stop us, why wouldn't that be better than an effort by the state to control the platforms, which is costly, time-consuming, and not necessarily freedom-reinforcing once the state has gained more power over the network? You may well have answers to these questions, which would be immensely valuable to read.


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r3 - 30 Nov 2019 - 17:25:38 - EbenMoglen
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