The ever-increasing erosion of our electronic data by big tech companies is a pet issue of mine. I deleted my Facebook in 2014. I’m trying to plan my exit strategy from Google. I dream of life without a smartphone. These are my credentials.
I saw an article on the Wall Street Journal about a “Privacy-as-Antitrust” concept which I think is a good idea. But the comments section had this perplexing refrain which comes up every time people raise the issue:
- You can still use other platforms without using Facebook
- You can voluntarily choose not to use facebook (thereby protecting your data)
- Everyone knows that Facebook is using your data and so by using the platform they obviously approve.
This has always struck me as a fallacy, I just can’t put my words on to why. So this is where I’m going to explore these ideas.
Argumentum Ad Populum
The formal argument could be structured thus: Facebook is not a monopoly because you can still effectively use the internet without using Facebook.
This is by comparison with Standard Oil, where you couldn’t buy an oil or oil related product without putting change in the pockets of a Rockefeller. So lets break down the premise a bit:
Monopoly is the idea that there is only one vendor available for a product. Lets just start with this simple step.
Facebook is not the only vendor of internet services because you can still use the internet without using Facebook.
But the argument in the WSJ article is arguing that our data is the cost. Can you use the internet without giving Facebook your data? There’s an abundance of articles that show that Facebook was tracking you even after you left the site, and many smart phones come with Facebook pre-loaded, an un-removable, permanent fixture in your phone. It would be naive to think that Facebook wasn’t collecting some kind of data through those means. So lets change the argument to reflect the data-as-monopoly concept.
Facebook is not the only vendor that collects your data because you can still use the internet without giving Facebook your data.
So far this is still holding true, because Facebook is definitely not the only entity collecting our data. But that’s kind of the problem, isn’t it? Not every instance of data collection is consented to. There are many parts of the internet where, if there is a “share on Facebook” button and you click it, Facebook will start tracking you and collecting your data. Is this phenomenon everywhere? By no means! At it’s core, this argument is saying:
Everyone else is doing it so Facebook should be able to, too.
This doesn’t address the Monopoly problem, but we can now identify the actual problem: People who object to Facebook need to object to every other data collector. Not every instance of data collection is consented to. You literally cannot use the internet without consenting to data collection.
Therefore, Facebook is not a monopoly, but it is a symptom of a bigger problem.
Lets again begin with a formal statement of the argument: You can protect your data from Facebook by not using Facebook.
Again, Facebook is not the only one doing this so lets not make this about Facebook. Lets refer to the category broadly as Data Collectors.
You can protect your data from Data Collectors by not using Data Collectors.
In this sense, it already breaks down. The internet by design cannot be used without someone collecting your data. Every thing you do on the internet is known to somebody. So we have a problem: If you want to keep using the internet and truly secure your data, you would have security such that the internet becomes unusable. If you want to truly protect your data, you need to not use the internet. This is a Laffer Curve for digital security.
The False Alternative problem comes from the fact that people consider Data Collectors as vendors of services, and if you don’t like the service you can use a different one.
I’m having trouble framing the problem here. Imagine a Supply and Demand curve. We might argue that the internet has an infinite supply (limited only by server farms, bandwidth, etc), and the demand is finite by only the people who have access to the internet. The internet itself is a commodity, then, which would be free if you found it in the wild. Standard oil found oil, but added value to it and brought it to the consumer. So the real Supply and Demand question is Supply of internet gate keepers vs. Demand for access to the internet.
But wait a minute, that’s getting into the Utility company problems. Where do Data Collectors make their money? Ad revenue. Their customer, whose demand they care about, is advertisers. Their product, whose supply they care about, is data. The producers of Data are people.
So the argument is really this:
If you don’t want Data Collectors to sell your data, stop making data.
Which is like telling someone not to breathe. Two farmers, producing corn, are mad that the local Baron is taking their corn from them and selling it to nearby cities. One Farmer says, “I wish he would stop taking my corn.” The other replies, “If you don’t like him taking your corn, stop growing it!”
The reason that argument is so confusing is because on it’s surface, it’s true. But the injustice is not in the Farmer growing corn, it’s in the acts of the Local Baron. The Farmers should not have to change their behavior to spare themselves injustice on the part of someone else. Lets take this argument ad absurdem.
A mugger stops a husband and wife on a darkened street. The husband says, “I wish you wouldn’t mug us.” The mugger replies, “If you don’t like getting mugged, don’t carry money around.”
It completely inverts the responsibilities of the parties. In modern parlance, one might call this “Victim Shaming”.
Our legal system allows us to make choices, and our moral predilections mandate that our choices be good and just choices. A person, making choices which are legal, and choices which are also virtuous, should not be inhibited by another parties misdeeds. This argument says that you should have anticipated those misdeeds before you went about making legal and virtuous choices. “You should have thought about not getting mugged before you lived your life successfully!” That argument is absurd on it’s face.
Silence as Consent
The third argument, formally stated, is thus: Everyone knows Facebook is using your data, so using the platform is implied consent.
Lets modify this with things we’ve already discovered: Everyone Knows Data Collectors are selling your data, so continuing to produce data is implied consent.
Again: Not every instance of data use gets consents from the user, so often times these companies use general consents. By using our platform you agree to let us use and/or sell everything you give us. Lets take a page out of metaphysics for a moment:
Essential to using a platform is consent to certain terms at the time you signed up for the platform. Accidental to using the platform is how that data is used, or what that data even is. So the key issue is that using a platform implies some kind of agreement to use the platform. It sounds tautological because it is: You don’t do things you don’t want to do.
In Year 2, DC Inc decides to update their policy to include some collection of data but they promise to be very careful with it. Bob has 10 friends on DC Social, so he says he can just manipulate his settings and that’ll be that.
In Year 5, DC Social updates their policy again, and informs Bob. Their policy says that every word he writes on the platform is owned by DC Social and they will sell it to movie producers to make a movie out of Bob’s life. Bob knew that they were collecting data, but the agreement he made in Year 0 is essentially different from the agreement in Year 5. Bob was not asked to affirm his agreement every time they make a change, and because the terms are essential to using the product, even if Bob disagreed he would no longer be able to use the platform.
This is what we might call the Darth Vader Rule: They are altering the deal, and we better hope they don’t alter it any further.
Lets look at this through an analogy, too. When two parties make a contract, any amendments need to be re-affirmed by both parties. I deal with this all the time in my work: My company would like to ask for more money, so we need to go to the other company to negotiate the terms, come to some agreed upon amount, and then re-execute the entire contract as amended. Changing the agreement unilaterally and forcing all parties to comply is ludicrous. Imagine, for example, that you’ve contracted with a company to cater a corporate event with a motivational speaker. You are contracted to provide 50 comically large sub sandwiches. Then they change the contract unilaterally that you are now to provide 50 comically large vats of chili. This is a fundamentally different service, and if you want to get paid you better provide it. You can choose to opt out of the contract, though, if that’s too much for you to handle.
The new argument here is: You want to use the Data Collectors more than they want you, so they can change the terms unilaterally and they’ll assume you agree.
I don’t know whether Facebook counts as a monopoly, even looking at the methods of Data Collection. But the arguments excusing Facebook and other Data Collectors are fallacious at best and malicious at worst. The Internet has been free and unregulated since it’s inception, and the exploitation of this by Data Collectors is pushing the bounds and we are rapidly approaching an era where the Internet will be regulated into oblivion.
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