Neoliberalism- Data, Privacy and the common man
“I can’t decide if it’s a choice: getting swept away”- Taylor Swift (Treacherous)
Introduction
CB Macpherson, in his work The Life and Times of Liberal Democracy, identified the key internal debate within liberalism- its vision for human society.[1] Whereas one school of thought focuses on enabling each individual to realize his or her potential, there is another that believes that the primary objective of a liberal regime is simply to leave people alone to the greatest extent possible and allow them to compete for everything in a largely unhindered market. In simple words, neoliberalism is a strain of thought that asserts the latter- an economic model as the only sustainable model of governance.
Neoliberalism may be narrowed down to two broad ideas.[2] The first is a drastically less powerful state meaning, governance must be carried out within the contextual definition of a ‘limited’ government that acts more as a referee and an enforcement agency than a body that reflects the will of the people. In the neoliberal paradigm, only the free market can comprehensively determine the will of the people is the free market. The primary means to reduce power of the state is reducing the financial power of the state- this is achieved through privatization and limits on the ability of governments to run fiscal deficits and accumulate debt. The other general idea conceptually states that self-regulating markets increase competition between private players which increase the efficiency of the goods and services as the number of consumers and resources are limited. This would, in an ideal world ensure that power generated from wealth would be decentralised between different players of the market which would ensure a greater degree of ‘freedom’. This is achieved through large scale deregulation and the opening up of domestic markets (including financial markets) to foreign competition and the creation of entities that create an ecosystem that sustain this scheme of things. As such, the neoliberal vision of governance in fact converges with an older liberal tradition and places power in the hands of those who have capital to invest and whose goal is to accumulate more.
Parallel to the emergence of neoliberalism as a dominant economic and governance model, the internet has slowly emerged as the greatest disruptive element in the history of civilization. Every sphere of the human experience in the 21st Century is deeply impacted by the internet which has, perhaps forever, changed how we interact with goods and services, other people and with ourselves. The convergence with the neoliberal system was almost inevitable in retrospect- how it will in fact play out with regard to data and how it affects privacy is a flag that is still unfurling. What is certain however is that it will have deep consequences with regard to individual autonomy and fundamentally change what freedom means for humanity.
Setting the stage
“The state is a soulless machine; it can never be weaned from the violence to which it owes its very existence” — Mahatma Gandhi
In the modern conception of the state as articulated by Gandhi, the state is an entity that owes its very existence to a monopoly on violence or coercion. It is, for all purposes, the only entity that may, in self-interest, create ‘justified’ situations to deprive individuals of their inherent rights with no consequences. In seeking to limit the powers of the state and decentralization of power itself while simultaneously ensuring that power is a market determined commodity, neoliberalism ideally seems like a model solution to most problems.[3] This idea becomes more alluring when the word ‘market’ is qualified with the adjective ‘free’ and is supplemented with the ‘American dream’ ideal- put together, meaning that the market is inherently a fair system where anyone can achieve anything and nothing is beyond individual endeavour. Coupled with an economic order under siege from stagnation, inflation and low growth in the mid-70s with the prevailing anti-government sentiment in the West produced anxiety and confusion within policymakers which created an effective policy vacuum.[4] This allowed the radically different unimpeded capitalistic idea-impervious to any other authority but the market an easy avenue in public policy. Inequality rather than being an undesirable thing, came to be celebrated as a necessary element of the market- a force that would ensure progress.[5] In this pre-described ‘crisis of democracy’, the neoliberal idea of governance also allowed policymakers to evade accountability and an entirely new order would be created where any disorder would be feared.[6]
State regulation, social legislation, principles of democratic policies and welfare measures thus, could now simply be replaced with what the abstract market deems to be true and the only solution to growth would be competition between firm, This worldview, first championed by F.A. Hayek[7] provided that conceptual superstructure and granted a certain amount of credibility to a new theory of a firm which acted as an antecedent to the structure, morality and the kind of relationship with society that defines a 21st Century surveillance dependent capitalist corporation.[8]
Data as economic goods
‘Data’ as defined[9] in the Information Technology Act is a representation of information in a manner suitable for communication, interpretation or processing by computer systems or computer networks or by automated means- this definition also finds acceptance in the draft[10] Data Protection Bill.
There can be no doubt about the importance of data as a commercial entity in the 21st Century. Firms spend great amounts of money in collecting a large volume of data from users of services they offer. This may generally be for streamlining the content that its own algorithm recommends for a more tailored service for the user[11] and for generating data inferences, creating hidden user profiles etc. that help other corporations target advertisements for products to the user.[12] The impact of an algorithm tailored ‘suggested’ content and advertisements has revolutionised how ‘supply’ in an economy functions as the ‘demand’ is not estimated or extrapolated, it is known specifically and may be tailored for individuals or groups. As profitable as this scheme may be for a few players in the digital game of thrones, the individual, denied autonomy over his own data (or generated inferences), is reduced to a mere pawn-susceptible to being influenced by having content or products being recommended using inferences that use his own data. Privacy norms can play an important role defining social and individual life for rich and poor. In his essay on the social foundations of privacy law, the dean of Yale Law School, Robert Post, argued that privacy upholds social “rules of civility” that create “a certain kind of human dignity and autonomy which can exist only within the embrace of community norms.”[13] He cautioned that these benefits would be threatened when social and communal relationships were replaced by individual interactions with “large scale surveillance organizations.”[14] This may also have debilitating effects on the democratic process as social media companies are extensively complicit in political advertising using the same tools used for promotion of goods or services.[15] The effects are visible even in Myanmar where Facebook and the algorithms it employs -essentially weaponizing personal data was complicit in the Rohingya genocide.[16] There is very little legal regulation of practices as this as the legal system usually lags behind technology and the influence money and services generated have on legislature. Minimum regulation is the norm also due to the neoliberal mindset of policymakers- keen on reducing the role of government in commerce and letting the market dictate entirely what seems desirable for its individual elements which is a terrible idea where it comes to something as integral as privacy of the individual. Big data has fundamentally transformed individual privacy — and not in equal ways for all. As a society, we are increasingly dependent upon technologies, which in turn need our personal information in order to function. The cyclical relationship has made it incredibly difficult for individuals to make informed decisions about what to keep private. The ‘surveillance’ technology, offering convenience in service as an exchange for data has seamlessly integrated with human society. Perhaps more importantly, the privacy considerations at stake will not be the same for everyone: they will vary depending upon one’s socioeconomic status- something that would, without a doubt be to the detriment of those already disadvantaged and marginalized.
Whereas Data is often rightly compared to crude oil[17] as a mark of its potential value and scope of industry, the necessity of protection and autonomy over information about oneself cannot be overstated. Data or more rudimentarily, information about oneself is part of one’s personal space which serves as a bedrock of a person’s identity and thus, pigeonholing of a concept as broad as information about oneself as a would simply reduce personal data to a commodity. Such a notion would completely envelope the idea of privacy as an extension of a person’s dignified existence or worse- make a person’s existence with dignity a tradeable commodity. There is a legitimate concern that ‘propertizing’ privacy will result in too much alienation of privacy- meaning that inevitably, individuals will be put under severe market pressure to increasingly trade information that they otherwise would not prefer (examples may include intimate conversations or pictures)[18] simply for a share of capital that firms earn with generating inferences from the same information that the users themselves share which reduces the human essentially to a commodity.
Frank Pasquale in fact, observed that neoliberalism has directly caused the creation of a world where privacy is treated as a competitive good. In a neoliberal world the basic assumption, erroneous at its core hypothesizes that consumers only choose to engage with services where their preferred level of privacy is offered. Regulatory interference in this world would only restrict free competition and would then be extraneous.[19] Thus, what privacy to an individual can be would be a gross market determined privacy. The demonisation of any attempts at state regularisation on social media is an idea that is firmly entrenched in academia. In fact, analysis[20] of 1400 law review articles on the specific subject of ‘regulation’ between 1980- 2005 reveals that the dominant theme, influenced by Friedman and Hayek was the systematic conflation of efforts to regulate industry with ‘tyranny and authoritarianism’. A ‘self-regulating’ mechanism[21] thus, given expression in the legal system is a tacit concession by the state again, to let the dominant players in the market dominate cyberspace.
Freedom and data
Of the many tall claims that proponents of the neoliberal practice of data commodification and usage put forward, there is an inherent factor of ‘predictability’ of human behaviour. Big data’s promise of increased efficiency, reliability, utility, profit, and pleasure might be seen as the justification for a fundamental jurisprudential shift from our current ex post facto system of penalties and punishments to ‘ex ante’ preventative measures that are increasingly being adopted in society. The predictive benefits belie an important insight historically represented in the presumption of innocence and associated privacy and natural justice values — that there is wisdom in setting boundaries around the kinds of assumptions that can be made about people.[22]
Pre-emptive predictions assess the likely consequences of allowing or disallowing a person to act in a certain way. This form of prediction does not usually adopt the perspective of the actor. Pre-emptive predictions are mostly made from the standpoint of the state, a corporation, or anyone who wishes to prevent or forestall certain types of action. These predictions are not concerned with an individual’s actions but with whether an individual or group should be permitted to act in a certain way. Examples of this technique include a no-fly list used to preclude possible terrorist activity on an airplane, or analytics software used to determine how much supervision parolees should have based on predictions of future behaviour.[23] The private sector is also embracing this approach. For example, companies are increasingly combing through big data to find their job candidates, rather than looking to the traditional format of resumes and interviews.[24] Pre-emptive predictions are thus intentionally used to drastically diminish a person’s range of future options. Closer home, the Uttar Pradesh Police has reportedly hired firms to keep an eye out on people viewing pornography and send them notifications on how their moves are now monitored to increase safety for women in the state. Contemptible as the reader may think viewing pornography is, even the most naive of people understand the scope of abuse of such services for tracking what people may choose to view in their free time. The road to hell is paved with good intentions and this will be no exception as the circle encircling the category of ‘pornography’ will only expand — simply to give more scope to the state to police morality in the cyberspace.
This has a direct effect on a person’s freedoms that he may exercise in his free time as it has a chilling effect on the kind of things he may do online or in places where he will be subject to surveillance. The criteria that may be employed for coming to such presumptions and generation of presumptions also do not have to conform to any democratic principles. The market, unregulated as it is will be the sole arbiter of crucial things as this. It culminates naturally to the theoretically free market regulating who capital from gainful employment can be allowed to accrue to (meaning the market having the power to decide who may join it) which ultimately even reduces a regulation resistant market a hollow shell of what it stood for- a neutral place where at least the equality of opportunity is guaranteed and ‘value’ is at least hypothetically democratic.
It must be understood that the right to privacy is an element of human dignity. Privacy ensures that the person can protect his thoughts from any unwanted intrusions. Recognition of this inherent autonomy of the individual allows him to freely exercise choices that determine the outcome of his life.[25] Commodification of data strikes at the heart of this conception and the reduction of human autonomy prevents a free exercise of human will. Whereas individually, a collection of information regarding various human choices by firms may seem inconsequential, taken together, this has the effect of disclosing a person’s preferences regarding food, gender, other aspects of identity, and generally, information about himself that he prefers not to disclose. Effectively, it is a compulsion to disclose in the most innocuous and stealthy manner and is thus, inherently immoral. As the Supreme Court noted,[26] an aggregation of information about individuals or groups generates new sets of information that perhaps the individual himself did not possess or was aware of. Creation and even linking of data sets may generate useful inferences for the bigger players in the market to exploit both for the production of new goods and creating demand for the same- thus putting similar corporations or products out of competition in the market. Thus, there are zero incentives for any firm to not employ large scale data mining projects or collect information from ‘consenting’ individuals- again, individuals with no idea how this information may be linked or used — thus, the neoliberal answer to the creation of privacy-friendly goods and services are simply negated in totality. This would inevitably cause the creation of oligarchies and monopolies that would then have complete control of information regarding individuals- a disturbing proposition to say the least.
Conclusion
While it is exciting to think about the power of big data and the utopic allure of powerful prediction machines that understand exactly what we mean and tell us exactly what we want to know about ourselves and others. The values that are derived from the broader concept of Privacy values merit the further study and development of potential limitations on how big data is used. We need to ensure that the convenience of useful prediction does not come at too high a cost. While data protection and privacy entrepreneurship should be encouraged, individuals should not have to pay up to protect their privacy or receive coupons as compensation. If we intend for our economic and legal frameworks to shift from data collection to use, it is essential to begin the conversation about what sort of uses we want to take off the table. Certain instances of price discrimination or adverse employment decisions are an easy place to start, but we ought to also focus on how data uses will impact different social classes. If the practical challenges facing average people are not considered, big data will push against efforts to promote social equality. Instead, we will be categorized and classified every which way, and only the highest high value of those categories will experience the best benefits that data can provide. It is this, unwise to surrender the freedom that accrues from the privacy that is cherished, hard-earned and lies at the bedrock of modern civilization to the abstractly defined ‘market forces’ and increasingly, only to the dominant players of the market.
N.B.- If you’re a random student who happens to read this and thinks this is neat, don’t copy-paste word for word while making your assignment. This is literally my economics project that has probably been through Turnitin. Instead, use the citations I have used and paraphrase properly.
[1] CB Macpherson, The Life and Times of Liberal Democracy. (1977)
[2] Jonathan D. Ostry, Prakash Loungani and Davide Furceri, Neoliberalism: Oversold? Finance and Development, Vol. 53, №2 (June 2016)
[3] Milton Friedman, Capitalism and Freedom,
[4] Daniel Stedman Jones, Masters of the Universe, 215 (2012)
[5] Philip Mirowski, Never let a serious crisis go to waste, 53–67 (2013)
[6] Greta R. Krippner, Capitalizing a crisis (2011)
[8] Shoshana Zuboff, The age of Surveillance Capitalism, 38 (2019)
[9] The Information Technology Act, 2000, §2(o)
[10] The Personal Data Protection Bill, 2019, §3(11)
[11] Colorado State University, Understanding YouTube’s Algorithm in 2019, April 2nd 2019, available at- https://social.colostate.edu/strategy/youtube-algorithm/ (Last visited on 13th March 2021)
[12] Flavio Negrini, How Internet ads work, available at- https://www.kaspersky.com/blog/internet-ads-101/12904/#:~:text=A%20variety%20of%20payment%20models,time%20the%20ad%20is%20clicked (Last accessed on 13th March 2021)
[13] Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 Calif. L. Rev.957, 959 (1989)
[14] Id, 1009
[15] Paul Lewis and Paul Hidler, Leaked: Cambridge Analytica’s blueprint for Trump victory, March 23rd 2018 available at- https://www.theguardian.com/uk-news/2018/mar/23/leaked-cambridge-analyticas-blueprint-for-trump-victory (Last accessed on 24th March, 2021)
[16] The New York Times, Facebook Admits It Was Used to Incite Violence in Myanmar, November 6, 2018, available at- https://www.nytimes.com/2018/11/06/technology/myanmar-facebook.html (Last visited on 2th March 2021)
[17] The Economist, The world’s most valuable resource is no longer oil, but data, May 6, 2017, available at- https://www.economist.com/leaders/2017/05/06/the-worlds-most-valuable-resource-is-no-longer-oil-but-data (Last visited on February 29, 2020)
[18] Lawrence Lessig, 262, Privacy in Post-Communist Europe, Social Research, Spring 2002, Vol. 69, №1, pp. 247–269
[19] Frank A. Pasquale, “Privacy, Antitrust, and Power”, George Mason Law Review 20 (4) (2013) 1009–1024
[20] Short, The Paranoid Style, 44–46
[22] Ian Kerr, Prediction, Pre-emption, Presumption: The Path of Law After the Computational Turn, in Privacy, Due Process and the Computational turn, 91(Mireille Hildebrandt & Katja de Vries eds., 2013).
[23] Soumya Panda, The Procedural Due Process Requirements for No-Fly Lists, 4 Pierce L. Rev. 121 (2005);
[24] Max Nisen, Moneyball at Work: They’ve Discovered What Really Makes a Great Employee, Bus. Insider May, 2013, available at- http://www.businessinsider.com/big-data-in-the-workplace-2013-5 (Last accessed on 24th March 2021)
[25] KS Puttaswamy v. Union of India, (2017) 10 SCC 1 ¶128 (per Chandrachud, J.)
[26] KS Puttaswamy v. Union of India, (2017) 10 SCC 1 ¶304 (per Chandrachud, J.)
