When Big Tech create our legal rights

The EU calls on Apple not to use privacy to justify anti-competitive behaviour. It is not the first time a Big Tech has used human rights to make a profit, nor is it the first time an institution has used human rights for political purposes. by Andrea Monti – Initially published in Italian by Strategikon, an Italian Tech Blog

According to a Reuters launch, European Commissioner Margrethe Vestager has called on Apple not to use privacy and security to justify blocking side-loading. Currently, in fact, in the name of these fundamental rights, Apple prevents iPhone and iPad users from purchasing software from third-party repositories. However, Vestager believes that by doing so, Apple is limiting the development of competition without actually benefiting users.

If Apple’s position in support of privacy might turn out to be a marketing stunt, that of the EU appears equally instrumental. The protection of personal data is, above all, a weapon in the European arsenal to practice lawfare – that is, the (geo)political use of law and rights – against the United States.

Apple’s strategy

It is not the first time that Apple has opposed the attempts of governments to breach the walled garden (or, depending on how one thinks of it, the golden cage) in which it has fenced its customers. In 2016, again ‘in the name of security,’ Tim Cook refused to put a backdoor into iPhones to aid judicial investigations. However, the company’s dedication to protecting its users has not prevented it from securing patents such as this one which, for example, would allow the smartphone’s camera to be disabled at events such as concerts or film ‘premieres’ or access to particular locations. Similarly, Apple has accepted a compromise with the Beijing government, allowing the data of Chinese users to stay in China. Not to mention the policy of closure and incompatibility that has historically confined users in a Matrix from which not even Neo and Trinity could escape.

Being intellectually honest, there is nothing strange or censurable in these three examples. Apple has been extremely sensitive to the issue of copyright since the days of the famous ‘trashcan case’ – the legal battle against Microsoft to claim exclusive use of the ‘trashcan’ functionality – and then in the war against Android, accused of ‘stealing’ the ideas that made the iPhone and iOS successful. Moreover, since Apple’s primary goal is to make profits, it is perfectly understandable to compromise with local governments and comply with their laws to expand its market. Finally, Apple has certainly not been the first or the only one to lock in users’ technology, despite the principles of transparency, compatibility, and interoperability. First, the ‘digital rights’ activists and now politicians and institutions consider essential for digital transformation.

At the same time, the EU was neither the first nor the last to use ‘rights’ as an instrument of political pressure against ‘unruly’ states. The Charter of Fundamental Rights of the EU is a way to rebalance relations between member states by preventing the creation of economic distortions on labour costs, for example, and the Regulation on the protection of personal data has declared itself to be ‘effective’ even outside EU borders (which are not political, by the way) in order to be a lever in international relations. Russia and China have also adopted similar legislation. In the name of security, these Countries imposed the localisation of citizens’ data within their borders. They also extended the reach of their laws wherever there is data on their countrymen. With its Cloud Act, the United States is no different, which stipulates that American companies must hand over the data in their possession to the investigative authorities, regardless of the country in which they reside, and thus regardless of the relevant laws.

Big Tech, rights, post-westfalianism and neo-medievalism

The scenario in which Tim Cook and Margrethe Vestager are moving is therefore much more complex than it appears and goes beyond a simplistic opposition between private industrial interests and the duties of public institutions to protect citizens.

In the background, but no less important, there are two questions to be addressed: who determines what a legal right is and what is the role of Big Tech in relations with institutions.

Since the Torch of Freedom, fundamental rights have been exploited for commercial purposes. In the early twentieth century USA, it was inappropriate for a woman to smoke. Around 1920, however, cigarette manufacturers began to design advertising campaigns aimed at women to open up a new market. The most spectacular result was the design of a campaign to manipulate American public opinion that, under the guise of affirming women’s right to emancipate themselves, used cigarettes (called torches) to transform smoking into an act of liberation to be publicly displayed (hence torch of freedom).

One hundred years later, a photo published in newspapers and on websites shows a smartphone with a slogan on it: Privacy. That’s iPhone. Mark Zuckerberg appealed to freedom of expression to uphold Facebook’s right to function as per its design. Twitter and Google decide how far a user can go in publishing messages and content.

It is not a question, as many have commented, of being outraged because these companies arrogate to themselves, rightly or wrongly, the right to decide how we can exercise our rights. The severe problem is that they have acquired the power to decide what is a legal right. In other words, the power of Big Tech is such that they determine the nature and limits of a person’s right. Advertisements and eye-catching products replace public debate and parliamentary confrontation. A right no longer stems from a social need but from a communication strategy that realises an industrial interest.

This process is not (yet) ubiquitous nor (perhaps) irreversible, but what triggered it was the surrender of states to a ‘technological innovation’ that they neither understand nor govern. The alarm rang twenty years ago, but nobody listened. Gradually, the sovereign state model designed in the aftermath of the Peace of Westphalia gives way to neo-medievalism. The power is no longer in the hands of those who formally hold it but in those of many non-institutional subjects who become equal partners in a sovereign state.

These issues should be at the core of the EU concerns. By contrast, European institutions look more focused on the possibility of allowing the overload of a mobile phone with yet another useless app.

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