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Data as a self-determined good in the context of social media

-- By CharlotteBerg - 15 Oct 2023

Introduction

In a modern driven society, apparently “free” services seem to spread everywhere. The range is broad: free coupon apps promise the costumer a discount on their purchase, free comparing services facilitate the planning of a weekend trip and free email services such as GMAIL or YAHOO are used by (almost) everyone. And why wouldn’t they? Technically easy to access and free of cost, those services are the most convenient option to use. However, if something is too good to be true, it probably isn’t true. None of these services are provided out of sheer philanthropy. On the contrary, they cost the providers a lot of money: In 2013, Google invested $ 7.3 billion in its data center infrastructure (Rich Miller: Google Spent $7.3 Billion on its Data Centers in 2013 on: Data Center Knowledge, https://www.datacenterknowledge.com/archives/2014/02/03/google-spent-7-3-billion-data-centers-2013, last accessed at 10/14/2023). And they want to be repaid.

The Issue

Although most costumers are not aware of it, it is no secret that big tech companies such as Alphabet (“Google”), Amazon or Meta (“Facebook”, “Instagram”) use their costumers’ data to create algorithms that will help them to gain profit for example by using targeted apps. They analyze from their user’s behavior their individual and (based on their gender, social status and origin) assumed preferences and propose goods without the users are simply not able to live without. I wouldn’t go as far as saying that the users are not aware of the fact that every mouse click is analyzed. Some people probably find it convenient to have a pre-selected variety of goods to choose from. Others might be a little bit annoying to be pestered with targeted ads but decide to ignore them in the long run. And I would also assume that most people have in the back of their minds that somehow their data and their user behavior are the consideration for the services that are provided to them such as offering a platform for exchange or sharing holiday pictures. On the other hand, I do also strongly believe that most users are not aware of the monetary value their data has for the respective companies, or else they would sell it to the data companies only in terms of real consideration.

Legislative approaches

The balance of power therefore plays out very uneven: On the one hand, there are multi-billion tech companies that essentially have a monopoly to certain services on the other hand there are consumers that might not be forced to participate at certain services but follow the deeply human urge to be a part of something. One could conclude that the costumer, the consumer in fact, needs to be protected and be made aware of their data value. I am, at the moment, not aware that U.S. legislation has undertaken any efforts to balance out this issue more evenly. However, the European Union has been addressing this issue by passing several legislative acts, the GDPR and the 2019/770 Directive on certain aspects concerning contracts for the supply of digital content and digital services (“digital content directive”).

Informed consent pursuant to the GDPR

The general idea of the GDPR is to give the data subject full control over their personal data by establishing legal bases for the data processing. The most relevant basis for social media related activities is consent by the data subject in terms of the data processing. The theory is quite convincing: As the data subject is not forced to participate in the activities on social media platforms, it should be able to give informed consent for each bit of data processing. However, the privacy notices tend to be very incomprehensible for the average user. Also, they can (and due to the enormous length will) check the box for acknowledgement and move on without having truly understood which of their (sensitive) personal data is used for which purposes, how long the data is stored and to which third parties’ respective data might be sold. Also, it is quite evident that the platform providers just ignore the legislation: In May 2023, the Irish Data Protection Authority (DPA) issued an Euro 1.2 billion fine against META (https://iapp.org/news/a/meta-fined-record-eu1-2-billion-under-gdpr-by-irelands-dpc/). The social media giant META is capable of adhering to the GDPR and implementing the necessary technical and organizational measures. Cynics might say, META just gains a bigger profit by selling the information to third parties.

Consideration and consumer rights pursuant to EU2019/770

With its framework of 2019, the European Union attempted to protect consumers from legal uncertainty in e-commerce by harmonizing and extending their rights (EU2019/770, Rec. 1,5). One of the key issues of the directive was to entitle consumers to contractual remedies in the context of digital services, for which the consumer provided data instead of money as consideration (Id, Rec. 24). This new approach is a fundamental change in European contract law. As much as I welcome this approach to strengthen costumer rights, we have to wait to see the practical implications. I, for one, do not believe that any consumer will claim remedies from a social media giant if its service is not working, because they might not be aware of their rights and they shy away from the confrontation. Moreover, I neither belief that social media giants will voluntarily not provide their services. How else would they attract and keep user and their data in order to make profit? Although the intention is good, this approach does not seem fitting.

Is education the better approach?

The answer lies probably in the informed and responsible data subject, especially in the education of people at a young age. And there is a lot of education about the danger of social media. However, as long as these kind of services, apparently free of charge, seem to be the best viable option in order to participate in the peer group, I am afraid that the user will not make any use of their data as a self-determined good.

What is a "self-determined good"? What does it matter what data "is"?

I think Shoshana Zuboff's book deserves more of your attention. Her account adds precision and clarity to your conceptions; a quotation and a reference could save you easily 200 words and sharpen your next draft.

GDPR achieves here what it mostly achieves in the world: it wastes a ton of words. In the end, as you perceive, it changes the language in the box you automatically check to add your complicity to the parasite's infection of the whole human race. The existing draft seems to think this is primarily a matter of unfair dealing, in which humanity is not being paid enough to let the parasite in. If there are actually any more significant rights or interests involved, you don't mention them.

The concluding 85 words seem to have arrived from nowhere, which suggests perhaps that the draft is already in metamorphosis. Education such as you mention is surely not the answer: I am doing it right now, after all, and you can see how worthless that is.

I think the real subject of this essay is hovering just out of view, obscured in ways that a more precise draft, more informed by Zuboff and more economical with GDPR wrapping paper, would bring into view. If Google sent everyone a big check, would everything then be all right?

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