By John Naughton

Notes on a discussion of two readings

  1. Paul Nemitz: “Constitutional democracy and technology in the age of artificial intelligence”, Philosophical Transactions of the Royal Society A, 15 October 2018. https://doi.org/10.1098/rsta.2018.0089
  2. Daniel Hanley: “How Antitrust Lost its Bite”, Slate, April 6, 2021 – https://tinyurl.com/2ht4h8wf

I had proposed these readings because (a) Nemitz’s provided a vigorous argument for resisting the ‘ethics-theatre’ currently being orchestrated by the tech industry as a pre-emptive strike against regulation by law; and (b) the Hanley article argued the need for firm rules in antitrust legislation rather than the latitude currently offered to US judges by the so-called “rule of reason”.

Most of the discussion revolved around the Nemitz article. Here are my notes of the conversation, using the Chatham House Rule as a reporting principle.

  • Nemitz’s assertion that “The Internet and its failures have thrived on a culture of lawlessness and irresponsibility” was challenged as an “un-nuanced and uncritical view of how law operates in the platform economy”. The point was that platform companies do of course ignore and evade law as and when it suits them, but they also at a corporate level rely on it and use it as both ‘a sword and a shield’; law has as a result played a major role in structuring the internet that now exists and producing the dominant platform companies we have today and has been leveraged very successfully to their advantage. Even the egregious abuse of personal data (which may seem closest to being “lawless”) largely still runs within the law’s overly permissive framework. Where it doesn’t, it generally tries to evade the law by skirt around gaps created within the law, so even this seemingly extra-legal processing is itself shaped by the law (and cannot therefore be “lawless”). So any respect for the law that they profess is indeed, as you say, disingenuous, but describing the internet as a “lawless” space – as Nemitz does – misses a huge part of the dynamic that got us here and is a real problem if we’re going to talk about the potential role of law in getting us out. Legal reform is needed, but if it’s going to work then we have to be aware of and account for these things.
  • This critique stemmed from the view that law is both produced by society and in turn reproduces society, and in that sense always functions essentially as an instrument of power — so it has historically been (and remains) a tool of dominance, of hierarchy, of exclusion and marginalisation, of capital and of colonialism. In that sense, the embryonic Silicon Valley giants slotted neatly into that paradigm. And so, could Nemitz’s insistence on the rule of law — without a critical understanding of what that actually means — itself be a problem?

“They [tech companies] employ the law when it suits them and do so very strategically – as both a ‘sword’ and a ‘shield’ – and that’s played a major role in getting the platform ecosystem to where it is now.”

  • On the one hand, laws are the basic tools that liberal democracies have available for bringing companies under democratic (i.e. accountable) control. On the other hand, large companies have always been adept (and, in liberal democracies, very successful) at using the law to further their interests and cement their power.
  • This point is particularly relevant to tech companies. They’ve used law to bring users within their terms of service and thereby to hold on to assets (e.g. exabytes of user data) that they probably wouldn’t have been able to do otherwise. They use law to enable the pretence that click-through EULAs are, in fact, contracts. So they employ the law when it suits them and do so very strategically — as both a ‘sword’ and a ‘shield’ — and that’s played a major role in getting the platform ecosystem to where it is now.
  • Also, law plays a big role in driving and shaping technological development. Technologies don’t emerge in a vacuum, they’re a product of their context and law is a major part of that context. So the platform business models and what’s happening on the internet aren’t outside of the law; they’re constructed through, and depend upon, it. So it’s misleading when people argue (like Nemitz??) that we need to use law to change things — as if the law isn’t there already and may actually be partially enabling things that are societally damaging. So unless we properly understand the rule of law in getting us to our current problematique, talking about how law can help us is like talking about using a tool to fix a problem without realising that the tool is itself is part of the problem.

“It’s the primacy of democracy, not of law that’s crucial.”

  • There was quite a lot of critical discussion of the GDPR on two fronts — its ‘neoliberal’ emphasis on individual rights; and things that are missing from it. Those omissions and gaps are not necessarily mistakes; they may be the result of political choices.
  • One question is whether there is a deficit of law around who owns property in the cloud. If you upload a photo to Facebook or whatever it’s unclear if you have property rights over or if the cloud-computing provider does. General consensus seems to be that that’s a tricky question! (Questions about who owns your data generally are.)
  • Even if laws exist, enforcement looks like a serious problem. Sometimes legal coercion of companies is necessary but difficult. And because of the ‘placelessness’ of the internet, it seems possible that a corporation or an entity could operate in a place where there’s no nexus to coerce it. Years ago Tim Wu and Jack Goldsmith’s book recounted how Yahoo discovered that they couldn’t just do whatever they wanted in France because they had assets in that jurisdiction and France seized them. Would that be the case that with say, Facebook, now? (Just think of why all of the tech giants have their European HQs in Ireland.)
  • It’s the primacy of democracy, not of law that’s crucial. If the main argument of the Nemitz paper is interpreted as the view that law will solve our problems, that’s untenable. But if we take as the main argument that we need to democratically discuss what the laws are, then we all agree with this. (But isn’t that just vacuous motherhood and apple pie?)
  • More on GDPR… it sets up a legal framework in which we can regulate the consenting person that is, that’s a good thing that most people can agree on. But the way that GDPR is constructed is extremely individualistic. For example, it disempowers data subjects in even in the name of giving them rights because it individualises them. So even the way that it’s constructed actually goes some way towards undermining its good effects. It’s based on the assumption that if we give people rights then everything will be fine. (Shades of the so-called “Right to be Forgotten”.)

As for the much-criticised GDPR, one could see it as an example of ‘trickle-down’ regulation, in that GDPR has become a kind of gold standard for other jurisdictions.

  • Why hasn’t academic law been a more critical discipline in these areas? The answer seems to be that legal academia (at least in the UK, with some honourable exceptions) seems exceptionally uncritical of tech, and any kind of critical thinking is relatively marginalised within the discipline compared to other social sciences. Also most students want to go into legal practice, so legal teaching and scholarship tends to be closely tied to law as a profession and, accordingly, the academy tends to be oriented around ‘producing’ practising lawyers.
  • There was some dissent from the tenor of the preceding discourse about the centrality of law and especially about the improbability of overturning such a deeply embedded cognitive and professional system. This has echoes of a venerable strand in political thinking which says that in order to change anything you have to change everything and it’s worse to change a little bit than it is to change everything — which means nothing actually changes. This is the doctrine that it’s quite impossible to do any good at all unless you do the ultimate good, which is to change everything. (Which meant, capitalism and colonialism and original sin, basically!) On the other hand, there is pragmatic work — making tweaks and adjustments — which though limited in scope might be beneficial and appeal to liberal reformers (and are correspondingly disdained by lofty adherents to the Big Picture).
  • There were some interesting perspectives based on the Daniel article. Conversations with people across disciplines show that technologists seem to suggest a technical solution for everything (solutionism rules OK?), while lawyers view the law as a solution for everything. But discussions with political scientists and sociologists mostly involve “fishing for ideas” which is a feature, not a bug, because it suggests that minds are not set in silos — yet. But one of the problems with the current discourse — and with these two articles — is that the law currently seems to be filling the political void. And the discourse seems to reflect public approval of the judicial approach compared with the trade-offs implicit in Congress. But the Slate article shows the pernicious influence or even interference of an over-politicised judiciary in politics and policy enforcement. (The influence of Robert Bork’s 1978 book and the Chicago School is still astonishing to contemplate.)
  • The Slate piece seems to suffer from a kind of ‘neocolonial governance syndrome’ — the West and the Rest. We all know section 230 by heart. And now it’s the “rule of reason” and the consumer welfare criterion of Bork. It’s important to understand the US legal and political context. But we should also understand: the active role of the US administration; what happened recently in Australia (where the government intervened, both through diplomatic means and directly on behalf of the Facebook platform); and in Ireland (where the government went to the European Court to oppose a ruling that Apple had underpaid tax to the tune of 13 billion Euros). So the obsession with the US doesn’t say much about the rest of the world’s capacity to intervene and dictate the rules of the game. And yet China, India and Turkey have been busy in this space recently.
  • And as for the much-criticised GDPR, one could see it as an example of ‘trickle-down’ regulation, in that GDPR has become a kind of gold standard for other jurisdictions. Something like 12 countries have adopted GDPR-like legislation, and this includes many countries in Latin America Chile. Chile, Brazil, South Africa and South Africa, South Africa, Japan, Canada and so on so forth.