(Source) tripleC: Communication, Capitalism & Critique is an open access journal focused on the critical study of capitalism and communication. (www.triple-c.at/index.php/tripleC)
DOI: https://doi.org/10.31269/triplec.v18i1.1147
Published 2020-03-19. Issue Vol 18 No 1 (2020)
tripleC is a peer-reviewed, open-access journal (ISSN: 1726-670X). All journal content, except where otherwise noted, is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Austria License.
Abstract: This article explores and theorises what is here termed the Silicon Doctrine (SD), that is the legal ideology underpinning the libertarian version of the digital economy promoted (among others) by Facebook, Uber, Apple, Amazon, Netflix and Google. The first part of the text explores the Silicon Doctrine’s Frankensteinian ideological roots. The second part of the text scrutinises three dimensions of the Silicon Doctrine: 1) data extraction; 2) domination of the informational infrastructure; and 3) labour exploitation. This article examines the social contract proposed by Silicon Valley, evaluating its two-sided role as a disruptive breakout from the twentieth century social model, and as a continuation of the neoliberal shock doctrine.
Keywords: digital capitalism, Silicon Valley, Facebook, platforms, Google, law
Acknowledgements: The author wishes to acknowledge the reviewers for their insightful comments and suggestions. Thanks also to Prof. Campbell Jones and Prof. James Oleson for their generosity and support.
[Part 2] The Silicon Doctrine. Aitor Jimenez.
(The University of Auckland, Auckland, New Zealand, aitor@auckland.ac.nz)
[Section] 3. The Pillars of Silicon Doctrine
3.1. Data Extraction
Silicon Valley companies have maintained a frontal opposition to regulations and norms intended to protect users’ privacy, as well as to defend intellectual property rights that do not belong to the realm of trade-secret regulations. In the United States (with the exception of California) privacy laws have been articulated in a fragmented manner, sector by sector, which was the preference of the tech industry, who intensely lobbied against any European-like comprehensive regulation (Cohen 2018). Orly Lobel (2016), among others, defends the tech industry position on the basis that old conceptions about privacy should not condition a new and flourishing industry. The bedrock of Platform Capitalism stands on a legal infrastructure that considers private data as a raw resource, res nullius ready to be taken and processed. As Julie Cohen (2017) states, this has allowed the development of an extractive data industry, which barely has to render accounts to users from whom it obtains all kinds of information: from consumer behaviour to the most obscure secrets of users passing through content of messages, mail, or any other type of communication (Cohen 2018).
Behind Alphabet’s (and others’) techno-utopian rhetoric of development, technological progress, need for openness, and access to information lies an extraordinary will to power in the economic and political spheres. User data can serve to segment markets, as a subject for subsequent marketing campaigns or for the development of new products (Fumagalli et al. 2018; Srnicek 2017a; 2017b; Esteve 2017). This information can be sold to insurance agencies or banks, to possible contractors, or even to intelligence services. That is in the short and mid-term, but platform capitalist companies think in the long-term. Information is not only a resource by itself, but the fuel of machine learning and AI. User data is the necessary supply to develop the technologies that are about to define the coming new industrial revolution, from driverless cars to fully automated smart cities. The information is obtained from multiple extraction points: clicks, browsing or waiting time on the screen, level of interaction, response or mobility. All the information around digital devices, everything that can be processed by their means of capturing audio, video, biometrics, geographical position, acquisitions, and navigation can be commercialised (Couldry and Mejias 2019). And that is only the beginning: Google is monetising the management of traffic flux in cities such as Madrid, water consumption, electricity; every aspect from the macro to the micro can be registered, datafied, monetarised. The Silicon Doctrine is the realisation of the Enlightenment, measurement, rationalisation and capitalist efficiency.
New digital capitalism companies have defended access to private data as an essential mechanism to advance in technological development. The massive expropriation of private data has been enunciated in terms of freedom. Any legal restriction on access to private information, including that of a personal nature formerly protected by outdated moral standards of privacy, are now considered obstacles against progress and science. The Silicon Doctrine strongly rejects any regulatory effort aimed to protect private data. It does not do so to claim the emancipatory utopia of the machinic commune in which subjects and machines live in peace without the need for states or corporations, but to affirm the right of digital corporations to govern that ‘no-man’s land’ that are the digital territories; an effective digital colonial government (based on science, progress and reason) that, in the words of Schmidt and Cohen, would redeem humanity from the oppressive presence of states and their bureaucracies (2013).
Many of the arguments adduced by Silicon Valley CEOs to justify their disruptive role in the global economy have to do with their self-identification as creators or makers at the service of humanity. Google, for example, has reiterated that its business mission is “Organize the world’s information and make it universally accessible and useful” (Google n.d.). Such a praiseworthy objective would excuse the ‘inevitable’ slips in the manipulation of private data or market abuse. For these corporations, humanity’s most pressing problems, such as inequality or climate change, are not to be solved through structural reforms or the transformation of the economic model, but through a technological transformation driven by them. Morozov (2013) has labelled this techno-determinism “solutionism”. In Silicon Valley’s parallel universe the interest of conglomerates such as Facebook (Facebook, WhatsApp and Instagram) is to put their users in communication, not to obtain economic benefits; Tinder’s is that people find the love they want; Google’s is that users have at their disposal the knowledge of humanity. In this narrative there are no shareholders, no bonds, no revenues, no lobbies, and no salaries. When the top managers of big technology companies, like Jeff Bezos or Tim Cook, are queried about the working conditions of their facilities, Internet addiction, or how democracy or the free market are jeopardised by their platforms, they elude the questions. They appeal to the transcendental mission of Silicon Valley’s capitalism: how would some sacrifice not be necessary for the greater good? In this way, Bezos (Amazon CEO) has avoided a response in numerous interviews on Amazon’s radical anti-union policies; Zuckerberg (Facebook CEO) has denied before the European and US lawmakers his obscure involvement in the massive sale of personal data and the experiments conducted on their users; Chesky (Airbnb CEO) avoids his responsibility with the radical gentrification of the cities where the company he leads is present.
3.2. Domination of the Informational Infrastructure
Google has been promoting open source as the instrument to develop its applications by financing large programming events, such as the Summer of Code, where an explicit call was made to hackers to work with the GNU Linux system (Google 2018). It also offers an infinity of free programming courses through digital platforms such as Udacity. Google’s rhetoric emphasises that it promotes global digital technological development, improving the services offered and multiplying the offer (since almost literally anyone can contribute to the universe of the apps in the Google Play Store). Thanks to open source, new business, training and development opportunities would arise. Google would certainly get benefits, but in return would be offering (free of charge) tomorrow’s means of production, materialising with it the maxim that the company, until recently, wielded: “Don’t be evil” (Cassin 2017).
When the European Commission decided to sanction Alphabet (the mother company of Google) with 4.343 million Euros for market abuse of its Android platform, Sundar Pichai, Google’s CEO, forcefully contested the decision with a public post at Google’s corporate blog (Pichai 2018). His speech makes the defence that Android had been developed in open code; that is, it can be freely manipulated, altered, and reinvented. It is not an operating system based on proprietary code like Microsoft’s Windows. Anyone with minimal coding skills can modify it, or create multiple and functional variations of it. Android cannot be a monopoly, claims Pichai; it is rather a free digital ecosystem for mobile devices. Pichai does not deny the lead position of its operating system; however, for the CEO, its success does not correspond to a strategy of violence, intimidation against competitors or predatory prices. On the contrary, according to Alphabet, Android would have opened roads and offered tools, multiplying the possibilities of developers who can now compete globally with strong and ductile work tools. The domain of Android is not such. Its nearly total presence is a liberating force; it offers tools to those who lack them. In his speech, Android’s open source breaks the castrating chains of proprietary software (Pichai 2018).
In its plea against the decision of the European Commission, Google failed to mention that the open source of its Android OS is limited to the applications that make the mobile phone a telephone device. The rest of the main apps, such as Maps or the Internet browser, respond to Google proprietary code, i.e. those that today have the highest percentage of smartphone usage. The free software used in Android is subjected to the hegemonic proprietary code of the market, in the hands of the most powerful corporation in the digital economy. Android exemplifies how the techno-libertarian narrative of Silicon Valley conceals a monopolistic reality, explicitly challenged by, among others, the EU institutions (Iacobucci and Ducci 2018). The ‘open’ free code is then configured to affirm the ‘closed’, to constitute a monopoly. This is not an unexpected or unforeseen result. The monopolistic domain is, in the words of one of the greatest exponents of the Silicon Doctrine, Peter Thiel, desirable both for its efficiency and its profitability, as well as for the supposed benefits for users. Competition, the ideological keystone of market capitalism as we knew it, is, for the founder of Pay-Pal, “for losers” (Thiel 2014). With the use of open source, Google also manages to outsource its innovation services in a process that has been called user-led innovation (Truffer 2003). That is, capitalist companies encourage users to contribute with their ideas and technological developments to the improvement of their products, all without any form of remuneration apart from social recognition in digital forums (or the pride of seeing your product being adopted by the company). Tech companies not only present themselves as corporations that “listen”, but also benefit from free labour (Patterson 2016).
3.3. Exploitation of Labour
Following a libertarian discourse, the Silicon Doctrine promotes flexibility of contracts and schedules, arguing that they strengthen workers’ autonomy and, ultimately, conciliation with their private lives. The flexibilisation of contracts in terms of hiring, labour management and dismissals has been a constant demand of the liberal and libertarian sectors, who found in the labour protectionism of social constitutionalism an obstacle to the development of their model. The libertarian narrative asserts that excessive labour regulation prevents quick reactions to economic eventualities. Protective laws slow down fast-hiring processes and make it difficult to implement immediate lay-offs, which in the opinion of the liberal and libertarian sectors compromise quick adaptations to market fluctuations (McArdle et al. 2017). That is why the Silicon Doctrine calls for abandoning the old thinking scheme based on employer-employee duality, replacing it with what has been termed “start-ups of the self” (Hoffman and Casnocha 2013). For Hoffman, co-founder of LinkedIn, we the subjects should consider ourselves companies, and thus manage as such; our relationships and personal habits ought to be managed as if they were part of a branding strategy.
To understand the Silicon Valley Doctrine in depth, it is necessary to stop at the work model posed by digital platforms such as Uber or Deliveroo. According to these companies, the worker-entrepreneur owns the means of production, and as such provides services to clients, who access the services through the platform companies. These would be mere facilitators of this exchange, limited to providing the necessary software for these services to be carried out, and charging a certain percentage, either to the client, to the entrepreneur or both. The link, and with it the responsibility between the employer and the platform, begins with the provision of the service and ends with it. Reality, however, is more complex. The digital companies are the ones that determine the conditions of provision of the services, being able to suspend access to their platform in an arbitrary manner. They are the ones who evaluate the independent workers, besides being the only ones able to mediate between them and the clients. They set prices, establish standards and procedures. They determine routes. They control discourse and advertising. For companies, all these signs point not to an employment relationship, but to a contractual relationship between two private companies, regardless of the obvious asymmetry that occurs between, for example, a driver and the digital giant Uber (Rosenblat 2018). The outsourcing of workers’ expenses is hidden under the appearance of flexibility of time and contracts. Workers are now accountable for the fiscal, logistical and social security responsibilities that were once corporate duties. The digital precariat maintains a salaried relationship out of sight beneath a false contractual bond of independence (Webster 2016).
Although digital platforms are rabidly arguing for freedom when it comes to fighting for the deregulation of labour markets, their surveillance practices point towards an extraordinarily restrictive interpretation of it. Amazon’s distribution centres have been repeatedly identified as spaces of constant violation of the most basic labour rights (Cattero and D’Onofrio 2018). The pressure on workers is extraordinary: frequent accidents, workers who do not even have time to urinate, and constant vigilance and security checks requiring time always at the worker’s expense are part of everyday life at Amazon’s warehouses. Amazon workers are required to be constantly available: it is irrelevant whether or not they are on the payroll, they must still be willing to accept hourly or daily contracts, with tight pre-warning times. Rejecting these contracts implies penalties that hinder subsequent hiring. That is a regulatory framework of flexibility and precariousness that benefits companies at a high social cost.
Companies like Uber or Deliveroo monitor their workers in real time (Clawson and Clawson 2017). Workers’ statistics are evaluated, measured, observed, managed. Amazon’s Mechanical Turk, its digital work platform, has managed to advance one more step in surveillance technology, by automating it. Amazon algorithms assess the productivity of workers, deciding who will be hired again and who will not. Amazon is imposing an intensive surveillance regime on its workers at a level never before reached. Surveillance strategies include real-time recordings; access to mails, calls, and browsing history; worker-tracking through GPS; extensive data analysis; and metadata obtained through mandatory wristbands (Moore et al. 2018).
Platform capitalist companies have conducted a powerful whitewashing campaign through their resolute rejection of Donald Trump’s immigration policies in the United States. Globally they have advocated for greater legal flexibility with workers’ mobility, a thesis close to the free-movement-of-people claim. This liberal commitment does not present a conflict with the core of neoliberal thinking. On the one hand, it questions the legitimacy of states to decide on their borders. On the other, it facilitates the provision of a qualified workforce, essential for the growth of technological hubs such as Silicon Valley. The positioning in favour of immigration reform that allows access to a greater volume of foreign labour forces in labour markets is consistent with the defence of the liberalisation of all types of markets and the free movement of goods and capital. As Fuchs (2015) points out, this liberal stance leaves intact the racialised structure of the global division of labour in the digital economy, since it only benefits the labour aristocracy composed of programmers, engineers and developers. The Silicon Doctrine excludes from its social contract the slaves from mineral mines in Africa and Latin America, Chinese and Taiwanese factory workers and Indian and Philippine call centre workers. Silicon Valley companies push to facilitate the importation of highly qualified labour forces, while fighting any kind of protectionist regulation and policies aimed at stopping industrial relocation (Pitti 2018).
To summarise, there are three main pillars of the Silicon Doctrine. The first has to do with the defence of the Doctrine’s productive model based on the extraction of data from digital worker-users. Silicon Valley wants free access to data; in this sense Silicon Valley is dedicating enormous political, cultural and economic efforts towards influencing the legislative evolution of everything related to the collection, processing and commercialisation of personal data. The second objective has to do with intellectual production, information and communication flows. Silicon Valley argues that these three areas should be regulated by private agents. The Silicon Doctrine proposes a model of libertarian governance of the network and the flows that take place within it. It criticises rights-based legislation as an obstacle to development, while proposing a legal framework based not on the guaranteeist ontology but on that of the lex mercatoria. The third objective seeks to liberalise labour markets. It is an offensive against the current model of relations of production, which in Western Europe is characterised by the Social Welfare State and Rule of Law. Instead, it proposes a deregulated labour market, characterised by labour relations without collective bargaining, based on radical criteria of temporality, flexibility and finitude. Silicon Valley advocates a libertarian model in terms of hiring, while at the same time imposing an intense digitalised surveillance regime on its workers. In short, the Silicon Valley Doctrine proposes a legal model consistent with its capitalist, neoliberal, neocolonial and libertarian ideological project. Rather than being a novelty, the Silicon Doctrine re-envisions the neoliberal project, adapting it to the digital era.
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Conclusion
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As this article has shown, Silicon Valley is not only trying to undermine liberal democracies’ legal frameworks, but to replace them. Therefore, Silicon Valley must have a project: but what is that project? What is the set of legal-political beliefs in which Silicon Valley’s version of digital capitalism stands? This political and legal strategy has here been termed the Silicon Doctrine. As mentioned earlier, the Silicon Doctrine is an ideological Frankenstein’s monster. The libertarian head wants no State control while seizing and colonising all available data. Here we have John Locke’s old liberal colonial attitude, refashioned for the occasion. The Frankensteinian liberal body tries to hide racial, gender and class discrimination behind a veil of calculated and utterly superficial demands. The monster’s body language looks futuristic and progressive, but the will for power and monopolistic control oozes out of its pores. Finally, the neoliberal soul is what makes the Silicon Doctrine so powerful and unsettling. Neoliberalism’s disdain for the empire of law, human rights, democracy or even empathy has been manifested in every Big Tech scandal for the last five years, from the blatant Uber and Airbnb violations of labour and housing laws, to Facebook’s lies and Google’s monopolistic domination. All of the above has been extensively studied and discussed by a plethora of authors; however (to my knowledge) it has never been systematised as a doctrine. As a Marxist legal scholar I found this quite troublesome. It is nearly impossible to propose alternatives to a reality we cannot identify. Now, better or worse, we have a place from which to think of a critical legal doctrine that challenges the Silicon Doctrine.
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About the Author — Aitor Jimenez
Aitor Jimenez is an academic, lawyer, and activist. He is a visiting research scholar from Auckland University at the Universidad Complutense de Madrid. Aitor Jimenez is currently organising several courses on digital capitalism among other things. His current research looks at digital capitalism’s regulatory framework. His work is focused on the question of how we can communalise/socialise/nationalise the digital commons.