1. 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
Faculty of Law, QUT, Brisbane Tilburg Institute of Law, Technology and Society

2. 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

3. 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"

4. 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
...

5. 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

6. Business Processes in the Digital Surveillance Economy

7. 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?

8. 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

9. 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

10. 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

11. 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

12. 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
Faculty of Law, QUT, Brisbane Tilburg Institute of Law, Technology and Society