Economies of Surveillance

44 Pages Posted: 29 Oct 2019 Last revised: 29 Jan 2020

See all articles by Mariano-Florentino Cuéllar

Mariano-Florentino Cuéllar

Stanford Law School; Freeman Spogli Institute for International Studies

Aziz Z. Huq

University of Chicago - Law School

Date Written: October 19, 2019

Abstract

Policymakers and the public have grown concerned in recent years about the web of technologies gathering information about people throughout the world. As vast companies and governments increasingly leverage these technologies to analyze and shape behavior, Harvard Business School Professor Sheila Zuboff offers an ambitious critique of the mix of economic practices, public policies, and social behaviors underlying “surveillance capitalism” –– which she defines primarily as “a new economic order that claims human experience as free raw material for hidden commercial practices of extraction, prediction, and sales.” Because Zuboff’s far-reaching argument has major implications for law and policy and cuts across a variety of scholarly literatures with implications for law and lawyers, our aim in this paper is to offer a close reading and analysis of her approach and its assumptions.

More specifically, Zuboff makes three kinds of claims in The Age of Surveillance Capitalism: a historical claim about the novelty of surveillance capitalism, a largely implicit but hardly indefensible skepticism about the connection between social welfare and indicia such as aggregate economic growth or revealed preference, and a prescriptive claim about the appropriate state response.

Although Zuboff finds new and eloquent ways to raise timely concerns about concentrated commercial power over information, we identify several assumptions and ideas in her argument worth further scrutiny, elaboration, or revision. First, much of the argument seems too focused on the ills of the private sector surveillance framework, and too little on the risks posed by the state (directly or working in concert with the private sector). That the two run together –– not only in countries like China, but even in the United States –– in important ways is a crucial insight that helps raise questions about Zuboff’s diagnosis and prescriptions. We also emphasize the recurring challenge of building accountable and responsive agencies that are also powerful enough to curb excesses involving surveillance and private economic agendas.

Second, the convergence of surveillance, communications, and computing power brings serious risks but also creates opportunities that raise complicated social welfare questions. That new concentrations of power sometimes disrupt old ones can bring benefits as well as costs to particular communities. Data-fueled efforts to shape behavior also raise complex legal and policy questions. Even without the modern surveillance and communications infrastructure, distinguishing the fluid nature of identity, behavior, and attitudes from some normatively-desirable core of “autonomy” that must be protected is notoriously fraught.

Third, some of the dislocations, threats, problems, and opportunities now arising strike us as different in degree but not necessarily in kind to previous moments of upheaval, especially the industrial revolution.  These dislocation also reflect subtle but important distinctions across particular contexts ultimately affecting their social, economic, and institutional implications. We conclude that (1) what Zuboff describes as a monolithic “surveillance capitalism” is best understood as series of “surveillance economies” that grow around the technology, organizational arrangements, and incentives, (2) these economies almost certainly deliver a mix of risks and costs as well as benefits, and (3) some of the concerns Zuboff treats as arising from the convergence of surveillance and commercial motives are better understood as the latest iteration of longstanding problems of governance and inequality arising in an an age of surveillance. By sorting through these complexities, we aim to beat a path to a clearer and more plausible sense of law’s appropriate role — and the state’s place more generally — in this new era of data- and surveillance-based economies.

Keywords: machine learning; regulatory policy; surveillance; surveillance economies; law and technology; institutions; political economy

Suggested Citation

Cuéllar, Mariano-Florentino and Huq, Aziz Z., Economies of Surveillance (October 19, 2019). Harvard Law Review, Vol. 133, 2020; Stanford Law and Economics Olin Working Paper No. 540; U of Chicago, Public Law Working Paper No. 733. Available at SSRN: https://ssrn.com/abstract=3472184

Mariano-Florentino Cuéllar

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-723-9216 (Phone)
650-725-0253 (Fax)

Freeman Spogli Institute for International Studies ( email )

United States

Aziz Z. Huq (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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