The Legal Framework of the Digital Surveillance Economy Roger Clarke & Angela Daly APSN – Uni Hong Kong – 27 September 2017 Xamax Consultancy, Canberra UNSW Law & Research School of Computer Science, ANU http://www.rogerclarke.com Faculty of Law, QUT, Brisbane Tilburg Institute of Law, Technology and Society http://staff.qut.edu.au/staff/dalya2/

Underlying Processes Digitisation The expression of data in machine-readable form, or conversion of analogue data into digital form – largely completed by 2000 The Datafication / Datafication of Individuals Digitalisation The shift from interpretation and management of the world through human perception and cognition, to dependence on the processing of digital data

Recent Interpretations Digital Market Manipulation (Calo 2013) 'The fastidious study of consumers and personalisation of their experience, reaching consumers anytime and anywhere, taking advantage of humans' cognitive limitations, and exploiting consumer frailty at an individual level' Surveillance Capitalism (Zuboff 2015) "information capitalism that predicts and modifies human behavior as a means to produce revenue and market control"

Data Sources Transactions Ad Clicks Browser-Clicks Search-Terms Social Media Profiles Social Media Posts Payment Transactions Media Experiences The Quantified Self ... Credit bureaux Mailing-List Operators Database Marketers Loyalty Schemes Phonebook Data Electoral Roll Data ...

A More Grounded Model The Digital Surveillance Economy The combination of institutions, institutional relationships and processes that enables corporations to exploit data arising from the monitoring of people's electronic behaviour Shapiro C. & Varian H.R. (1999) 'Information Rules: A Strategic Guide to the Network Economy' Harvard Business School Press, 1999

Business Processes in the Digital Surveillance Economy

How Do They Get Away With It? Why doesn't consumer consent matter? What permits third-party cookies and web-bugs? Why doesn't spyware breach laws? Why can personal data be trafficked? Why isn't the use of telephone directory and electoral data restricted to specified purposes? Are there any constraints on data consolidation? Can any analysis be performed, for any purpose? Is there any obligation for decision transparency? What constraints apply to Internet ad targeting? Are any forms of behaviour manipulation banned? Are there any constraints on micro-pricing?

What Heads of Law are Relevant? Data Protection Law Privacy Law more generally esp. Communications and Behavioural Privacy Hence Surveillance Laws, Law of Confidence Competition Law Consumer Protection Law Intellectual Property Law (Anti-)Discrimination Law

What is the problem? 1. Laws which facilitate this conduct actual authorisation of some behaviours; laws that are permissive variously by design, by default and through the failures of parliaments to adapt laws to address the impacts of substantial technological change; the freedom of consumer marketers to self-authorise their activities the use of very broad and often highly vague expressions within their terms of service

What is the problem? 2. Lack of enforcement of useful provisions the practical impossibility of individual consumers challenging corporations, even where they do breach the law; the absence of effective mechanisms whereby collectives of consumers can challenge corporations the concentration of much of the economic activity in jurisdictions in which consumer protections are very weak; the absence of regulators that have scope, resources, power and the will to constrain corporate behaviour Lack of ‘joined up’ approach across regulators and areas of law

Next steps We will go through the 12 aspects of the digital surveillance economy already identified and apply these laws to them, to demonstrate the extent to which (1) and (2) are true. We have a particular interest in Australia given that is where we are based, and also given there has been very little regulatory activity compared to e.g. the European Union and United States

The Legal Framework of the Digital Surveillance Economy Roger Clarke & Angela Daly APSN – Uni Hong Kong – 27 September 2017 Xamax Consultancy, Canberra UNSW Law & Research School of Computer Science, ANU http://www.rogerclarke.com Faculty of Law, QUT, Brisbane Tilburg Institute of Law, Technology and Society http://staff.qut.edu.au/staff/dalya2/