Shoshana Zuboff's opinion piece in the Guardian highlights the challenges faced by lawmakers in tackling the all pervasive influence of what she calls "surveillance capitalism" that seeks to harvest our human experiences and use them to influence future behaviours. She poses the question - what should lawmakers do? And answers that we need to start by outlawing the front end secret theft of private experience and the back end markets that trade in human futures.
The potential for such action already exists in international human rights law - what is lacking is serious implementation of international law on the regional and national levels. Much of the debate so far around regulation of the internet has focused on privacy, data protection and freedom of expression, but the problems identified by Zuboff go to the heart of other rights that are only just starting to be developed in thinking around technology - she is talking about our rights to freedom of thought and opinion.
The right to freedom of thought, unlike the rights to private life or freedom of expression, is absolute. This means that, if an activity interferes with our right to think for ourselves inside our heads (the so-called "forum internum") it can never be justified for any reason. The right includes three elements:
- the right to keep our thoughts private,
- the right to keep our thoughts free from manipulation, and
- the right not to be penalised for our thoughts.
The surveillance capitalism model described by Zuboff creates a threat to all three aspects of the right.
International human rights law places a positive obligation on States to protect our right to freedom of thought from the activities of businesses by creating adequate legal and regulatory frameworks. So far, States have failed to take serious action in this area, but it is not something that we can afford to put off. Once we lose our individual and collective rights to freedom of thought and opinion, we may never get them back with very serious consequences for us as individuals and democratic societies as a whole.
Zuboff's article is a timely call to action. It is time for lawmakers to move beyond the data and tackle the underlying problem - the fundamental threat to our autonomy and the wholesale marketing of our minds.
What should lawmakers do? First, interrupt and outlaw surveillance capitalism’s data supplies and revenue flows. This means, at the front end, outlawing the secret theft of private experience. At the back end, we can disrupt revenues by outlawing markets that trade in human futures knowing that their imperatives are fundamentally anti-democratic. We already outlaw markets that traffic in slavery or human organs.