By: Lynn Goldstein & Marty Abrams

Are the goals of a comprehensive U.S. privacy bill to cure the ills of surveillance capitalism?  Algorithmic discrimination?  Labor displacement through AI?  Data monopolies as a driver of concentration?  Law enforcement through private observation?  Passing comprehensive federal privacy legislation was complex enough when the issues were AdTech and individuals access to their data.  When solving all the ills of the Fourth Industrial Revolution is added, the prospects for comprehensive federal privacy legislation become daunting. 

Comprehensive federal privacy legislation will be impeded if the law is expected to cure all the wrongs in a digital age.  In a Biden administration, progressives have more clout in Washington.  Senator Coons from Delaware is chairing a Senate Judiciary Subcommittee on Privacy, and he has authored legislation on algorithmic discrimination.  However, the full range of the information social equity issues has not been articulated yet in Washington.  However, it has been stated clearly in the country North of the U.S. in the debate over new privacy legislation in Canada.

An excellent description of the demand for social equity is in an essay in the Canadian “National Journal” by the former CEO of Research in Motion, Jim Balsillie.   The Balsillie  commentary clearly articulates the growing progressive view that privacy legislation should deal with all the warts of the observation age and pushes against the manifest destiny of insights driven by analytics. 

Canada’s attempt to enact new federal privacy legislation is Bill C-11, tabled in the House of Commons last December.  C-11 is the government’s attempt to reconcile Canada’s digital ambition with Canadian’s long held view that people should control their data.  Balsillie does not believe C-11 will solve the ills of an observational age:

In the early 21^st century, every industry became a technology industry, and now just about every internet-enabled device, and online service, is a supply-chain interface for the unobstructed flow of behavioural data that’s used to power the surveillance economy.  This has not only meant the death of privacy, but has served to undermine personal autonomy, free markets and democracy.

Today’s technologies get their power through their control of data.  Data gives technology an unprecedented ability to influence individual behaviour.  The economic incentives of companies in the surveillance economy differ so sharply from those of traditional businesses that new data governance rules are needed to contain them and prevent abuses.

. . . .  This is why the data-driven economy has, in less than 10 years, created the greatest market and wealth concentrations in economic history, reduced the rate of entrepreneurship, innovation and business dynamism and lowered wages . . . .   Such monopolistic companies are not contributing to the productive capacity of the market, but instead setting the market standard to which all other firms must conform to in order to survive.

Similar views have been penned in the U.S.  The term “surveillance capitalism” was coined by Shoshana Zuboff, a professor at Harvard University.  But these views have not coalesced into an articulation of privacy legislation.  Instead, privacy legislation has centered on greater consumer control, more detailed record keeping and transparency, and risk assessments but no clear direction on the risks to be weighed. 

This direction will change.  Hearings have begun already on the negative effects of an information economy.  At some point the concerns for social equity in an information economy will be linked explicitly with privacy legislation, and the expectations for that legislation will expand beyond reasonable boundaries.

Balsillie does not set forth what he thinks should be in privacy legislation.  He does describe the shortcomings of a consent-based regime where the power lies with the party requesting consent.  Instead, he does paint broad expectations on what he thinks is needed and why:

Canadians need a new legal framework that outlaws the collection of behavioural data on massive scales and the algorithms that micro-target and manipulate human behaviour.

. . . . A revised bill C-11 should address the corrosive imbalances in the relationship between individuals and data intermediaries. 

. . . . If C-11 becomes law in its current form, markets will become more concentrated, our social challenges will become more pronounced and our democracy will continue to be insidiously subverted by technologies that facilitate surveillance and manipulation . . . . No privacy bill, or even fair processing legislation such as has been suggested by the IAF, will solve every ill of an information age:  no place to be invisible, imbalances of power, dated competition law, hidden discrimination.  Comprehensive federal privacy legislation will solve many problems, but it will not cure all the ills of Fourth Industrial Revolution.  However, there are growing expectations that it should do just that.  Those views will be articulated in Washington just as they have been in Ottawa.  That articulation will make passing comprehensive federal privacy legislation even more difficult