ofthewedge

rooting around for grubs in diverse soils

All that is solid…

I had not clocked Spaced until a beer blogger wrote a couple of years ago about the evolution of the function of pubs as you grow older in London, coinciding with chronic decline due to wider socio-economic trends. ‘The specific pub culture depicted has already begun to fade out of existence,’ blogged Boak & Bailey, ‘The portrayal of a lock-in, for example, gave us a rush of nostalgia for the world of drawn curtains, low muttering and conspiratorial glee.’ The ‘rough-and-ready pubs’ that were a mainstay of urban life and fabric, taken for granted, are now almost all flats and Tesco Metros. These nondescript boozers were already staggering, and the pandemic has all but finished them off.

I was not watching much TV on Friday nights at the turn of the millennium. But as a latecomer I find Space to be one of the most charming and comforting sitcoms ever made, and a vehicle of heart-sinking nostalgia. Twenty years is a long time, but twenty years ago feels recent. Like Daisy and Tim I was shacking up in shared houses, people typically lounging around with little disposable income. I was last night thinking of the Bagpuss theme tune pizzicato spliced at the start of Series 2 Episode 2 as accompaniment to successive close-ups of the show’s 20-something loafers, and the dog, lying in one morning before the violent eruption of an almighty row between the landlady and her daughter Amber, one of many moments of comic inspiration.

Thirty years ago with the launch of the Premier League and Sky Sports, I tried to impress an older and wiser mate of mine by recalling a Billy Bragg motto ‘Capitalism is Killing Music’ from a few years earlier (which he had put on an album cover along with the instruction to ‘pay no more than £4.99’ for it). Capitalism is killing football, I said; Capitalism is killing everything, he swiftly retorted. Now my club, from which have become already estranged, owned by a remote, callous and philistine American billionaire, announced its elopement with similarly soul-bereft mega clubs to form a ‘super league’. I am not sure where this will end up; it’s been long on the cards.

What is left? The BBC cannot be relied on anymore for neutral analysis, now they have been cowed into submission by the rightwing’s ascendancy and its iron grip on British power. The Church of England, and my old parish church of Hackney has been captured and branded by the born-again marketers of the Royal Borough of Kensington.

What I thought was permanent is not. It’s all now sunken lines and sockets, greyness and loss.

UPDATE: Super League is dead, for now. Hope springs…

The age of (trying to regulate) surveillance capitalism

For a while now the most interesting discussions about tech and privacy have been happening in the United States. In politics, the US Congress in 2018-2020 was awash with proposals for a federal privacy law. Privacy academia is also in full spate, and there are few more incisive and erudite contributors than Julie Cohen, who in her latest blockbuster suggests what such a federal privacy law should and should not do if it is to address what she calls the ‘dysfunctions of the networked information economy’. 

Privacy has been viewed through the prism of individual rights, even if there is a general acceptance that individual rights and freedoms are social goods. Cohen focuses on the limitations of this perspective. ‘Atomistic, post hoc assertions of individual control rights … cannot meaningfully discipline networked processes that operate at scale. Nor can they reshape earlier decisions about the design of algorithms and user interfaces.’  She takes aim especially at ‘The continuing optimism about consent-based approaches to privacy governance’, which she finds ‘mystifying, because the deficiencies of such approaches are well known and relatively intractable.’  The landscape is too complex and manipulation too easy for consent to be the answer. Tech firms can game user control rights with ‘synthetic data’ that tends to lie outside the framework. She (like Paul Schwarz much earlier) sees the consent requirement as akin to property rights, which have failed to safeguard the interests of the marginalized and poor. ‘It makes no sense whatsoever where networked, large-scale processes are involved.’ 

Novel and creative apparatuses that aim to compensate for the limitations of individual control, like ‘user governed data cooperatives’ or ‘automated consent management panels’, might work for ‘smaller, more homogeneous communities’ where it is obvious which resources are to be protected. But their effect, Cohen argues, is to ‘turn consent into a fig leaf’, useful only ‘to achieve compliance with a regime that requires symbols of atomistic accountability.’

Moreover, the hoped for ‘trust’ and ‘duty of care’ often touted – festishised even – as an all-purpose salve, a sort of soft law social contract between commercial digital players and society, would never be considered sufficient for banks, pharma or insurance companies. We are too aware of the risks in those fields to allow such latitude. In the digital economy, ‘dominant actors’ could only be expected to change their surveillance-based business models, if their ‘corporate ownership and control structures’ as well as ‘licensed flows of data’ were disrupted. They set the terms and protocols for data use that developers and ‘marginal actors in networked information ecosystems’ – from media companies to white supremacists – have every incentive to follow.

Until recently, there were vast swathes of the planet without any general privacy and data protection laws. Those regulatory deserts are now dwindling, with Brazil and soon India adopting rules that will extend legal protection to billions of people. (See especially the work of Gabriela Zanfir-Fortuna at the FPF in tracking these developments.)  Authoritarian China is also aping GDPR-styles rules, reflecting popular exasperation with their own surveillance capitalists, though the rules are clearly subservient to the far greater priority of state coercion and control. Ironically, the United States could soon become the global outlier.

Cohen however critiques data protection on grounds that it ‘relies on prudential obligations’ and ‘invites death by a thousand cuts’, unable to scale to today’s tech leviathans and systemic privacy depredations, reducing well-meaning laws to ‘an exercise in managerial box-checking’. She takes the GDPR to task, for example, for requiring data protection-by-design without specifying what the design ought to be: ‘There is a hole at the center where substantive standards ought to be—and precisely for that reason, data protection regulators often rely on alleged disclosure violations as vehicles for their enforcement actions, reflexively reaching back for atomistic governance via user control rights as the path of least resistance.’  She notes that the proposed privacy bills all shy away from regulating government use of data, so they would not remedy the shortcomings identify in the two CJEU Schrems judgments. Nor, for that matter, do they seem interested in the principle of purpose limitation in the use of personal data. It is unclear, however, what Cohen would prefer to see. The GDPR and its fellow travellers are criticised for their tendency towards over-prescriptiveness, but at their core is an attempt less to micromanage business practices, even less to outlaw business models, but instead to make them accountable for whatever they choose to do with the data they control. Consent is not, in fact, at the heart of the GDPR.

Cohen is at her most convincing when highlighting the gap between legislative promise and delivery of outcome. ‘If one wants to appear reformist while moving the needle only very slightly—one confers authority to make rules and bring enforcement actions, and then one waits to reap the predicted beneficial results.’ This model has broken down, she says. It’s like a car manufacturer or (at least before the 2007-8 crisis) mortgage lender that fawns over its prospective customers before neglecting them after the purchase has been made and whenever problems arise. The ruthless injunction to ‘Always Be Closing’ in David Mamet’s Glengarry Glen Ross becomes Always Be Legislating, and let the enforcement look after itself. ‘Enforcement practice,’ however, ‘has largely devolved into standard-form consent decree practice, creating processes of legal endogeneity that simultaneously internalize and dilute substantive mandates.’ The dirty secret of these enforcement strategies is that Big Tech’s excesses remain and have if anything got worse during their implementation.

These ‘litigation-centered enforcement mechanisms’ can only ever be as effective as access to justice which, at least in the United States, has diminished over the years as standing and class-action have been curtailed. Public enforcers have been underfunded and become increasingly risk-averse.  Infringements of privacy being systemic, Cohen thinks it is insufficient to single out individual actions of bad actors pour encourager les autres, as the effect is to ‘validate the mainstream of current conduct rather than meaningfully shifting its center of gravity’.  The behaviour regulators seek to penalise and reform is so profitable that occasional enforcement can be planned for, and absorbed, by the bigger companies as an acceptable business overhead – Cohen cites the size of the 2019 FTC $5bn settlement with Facebook which broke records but changed nothing.

What is the alternative? Privacy regulation should move out of its silo and borrow from post-crisis financial regulation’s ‘operating requirements for auditing, benchmarking, and stress testing,’ and for ‘public-facing transparency about information-handling practices’. ‘Honoring the public’s right to know requires a less deferential approach to the secrecy claims that have become endemic in the networked information era.’ Instead of drop-in-the-ocean civil fines, public enforcers should be able to reverse the incentive bias by disgorging profits accruing from unlawful activity, and return those ill-gotten gains not only to the individuals affected but also plough them back into the public enforcement budget. Where violations with knowledge and intent have been proven, it should be possible to target the personal wealth of those accountable board members, and especially where they happen also to be majority shareholders. These are means for internalizing the externalities of their immensely profitable enterprises.

Julie Cohen’s remedies echoed and coincided with those proposed by the apparently chastened former CFO of Goldman Sachs. Writing in The Economist, Martin Chavez said, ‘Just as CCAR places limits on the leverage in derivatives portfolios by imposing capital requirements, digital regulators would insist that platforms constrain the algorithmic amplification of outrage and emotional resonance by limiting the propagation of viral content. Regulators would base their rules on a deep and shared understanding between the regulator and the regulated of how digital companies make money, just as banks simulate their complex chain of interlinked businesses into the future in a stress test.’ Chavez concedes that the Dodd Frank Act and its ilk have hardly ushered in golden era of financial morality, but he is not alone in wondering why what’s good for the banking goose cannot equally be served up to the digital gander.  

These are worthy and thoughtful additions to the debate on how to forestall the failure of tech companies that have become ‘too big to fail’, by means of a concoction of intricate technocratic rules that only the biggest can be expected to be able to comply with. For engagement with the underlying questions of growing inequality, digital or otherwise, and of when a company may simply be ‘too big’ for a purported democracy of human rights and equality before the law, we must look elsewhere.

The GDPR was the most lobbied law in EU history. DSA: Hold my beer

Autumn, 2010

We are used to rain on All Saints’ Day. Half the leaves litter the floor and the other half cling to their branches until the next big gust of wind. Here comes winter.

On Wednesday we should, but might not, know the outcome of the US Presidential Elections. The prospects this decade for ‘human dignity and human rights, freedom, democracy, equality and the rule of law’ – the EU’s self-professed ‘values’ – hang in the balance. Still more ominously, Trump’s reelection would, as generally expected, effectively dash the already fragile hope of limiting global warming by end of the century to below 3°C compared to preindustrial levels.

Whether or not we know the result on 4 November, no one will be interested in it being exactly one decade since the European Commission announced its GDPR intentions. The official communication was the familiar stock-in-trade of shaded boxes, emboldened text and bullet points guiding the reader through an unexplained hierarchy of content. Fifteen months later, a draft legal act was tabled. Before that, a pre-final text had been strategically leaked to test the market; a pair of lobbyists from Apple and Facebook were spotted in a Brussels café as they pored over the document together circling and highlighting the bits to report to California.

A decade is a long time in digital technology, as the clichés remind us. Yet the 2010 communication does not seem hopelessly dated. It referred to ‘rapid technological developments and globalisation’, it mentioned ‘social networking sites’ and ‘”Cloud computing”’ (the later still meriting inverted commas back then). Otherwise, it essentially rehearsed the pillars and principles of EU data protection law that are now so commonplace that even China is pretending, in its own sinister way, to adopt them. What the document does not grapple with, however, is the notion of power.

Data protection law has only a very basic framework of power, premised as it is on the notion that if you can collect and use data then you are in a position to affect the life of the person to whom the data relates. One of the 150 recitals in the GDPR nods towards such a framework, when it attempts to rule out consent as a legal basis for processing when there is ‘a clear imbalance between the data subject and the controller’. There are some concessions aimed at easing the burden for ‘micro, small and medium enterprises.’ Beyond that, however, data protection rights and obligations apply equally everywhere, from the local dry cleaners to Exxon Mobil, and from 2016 the new digital disruptors would have to fall in line too.

Soon it would become clear that some animals are more equal than others. The digital revolution continued and, around the time the GDPR was being adopted, big tech replaced big oil at the top of the corporate food chain.

‘Diminished beauty, multiplied commonplace’

US big tech is now feeling the heat. Facebook’s head of cybersecurity policy is unable to sleep at night thinking about the 3 November election and his platform’s susceptibility as a target for state-sponsored hacking and as a conduit/ agent for disinformation. Google, subject of the US Department of Justice’s biggest antitrust suit since Microsoft in 1998, is alleged to be ‘the unchallenged gateway’, ‘crippling the competitive process, reducing consumer choice, and stifling innovation…’ forcing ‘countless advertisers’ to ‘pay a toll’ to its search monopolies and consumers to accept its ‘privacy practices’. The attorney generals of just about every state have been conducting antitrust probes into both these companies.

Margrethe Vestager, in a speech last week trailing the Digital Services Act, said, ‘today, a few big platforms… define our public space – and the choices they make affect the way our democracy works,” and ‘we can’t just leave decisions which affect the future of our democracy to be made in the secrecy of a few corporate boardrooms.’ The European Data Protection Supervisor may have been the first EU body to speak in such terms (‘A very small number of giant companies have emerged as effective gatekeepers of the digital content which most people consume’) in March 2018, in a paper on privacy and online manipulation that coincided with the breaking of the Facebook-Cambridge Analytica scandal.

The DSA might well supplant the GDPR as the legislative acronym of the new decade. Unlike the GDPR, it does promise to embody a framework of power. It will concern ‘the very few large online platforms’ whose ‘role as gatekeepers between businesses and consumers, with economic power and control over entire platform ecosystems, makes it all but impossible for rivals or new market entrants to compete.’

‘How it is whirled about/ Wherever the orbit of the moon can reach…’

Lobbying around the GDPR was fierce and unprecedented. It took over two years and three months and 3999 amendments – plenty of them helpfully drafted by corporate lobbyists – for the European Parliament to settle on its preferred text in March 2014. It took another two years and three months before the law was finalised and adopted. Among the scaremongering that accompanied this frenzy of legal drafting were ‘studies’ purporting, for instance, that the GDPR would result in loss of 3.9% of the EU’s GDP (h/t @PaulNemitz). (Now the same consultancy has published a study, paid for by Google, which warns the EU will lose a mere 0.45% of GDP as a result of the DSA, which is very reassuring.)

These companies are shapeshifters par excellence. They employ thousands of lobbyists and lawyers on terms too generous for any taxpayer-funded regulator to compete with. They oppose regulation unless they are able to co-draft it themselves, or unless its prospect is so fanciful (e.g. Zuckerberg’s call in March 2019 for ‘smart global regulation’ of the internet) that it can be safely advocated without risk it will ever happen. When a lawmaker actually manages to pass regulation, all attempts at enforcement are contested in the courts, further depleting the resources and morale of authorities already routinely vilified for being timid and lugubrious in the exercise of their powers.

‘Much boisterous courage’

Since the summer, Google (market cap $1.032 trillion) has appealed the €600k fine that Belgium’s DPA (annual budget €6m) had dared to impose for violation of the GDPR’s right to be forgotten. Facebook meanwhile successfully applied to the Irish court to suspend the investigation (concerning a complaint already four years old) by the Irish DPA into its use of Standard Contractual Clauses in the light of the European Court of Justice’s judgment in July in Schrems II . It simultaneously appeared to leak a story to the Wall Street Journal while launching a PR assault headed by Nick Clegg protesting that it was only trying to help small businesses in Europe. Last year, the majority decision of the Federal Trade Commission justified its $5 billion settlement with Facebook (a settlement agreed with the party, not a fine imposed) on grounds of its hypothetical question ‘Is the relief we would obtain through this settlement equal to or better than what we could reasonably obtain through litigation?’

Democracies are thus confronted with monopolies who deny that they are monopolies but insist that they are providing an indispensable service to people who nevertheless are only ‘one click away’ from using an alternative service provider if they choose. The Chernobyl-like stability of this proposition is finally at imminent risk of collapsing under the weight of its own contradictions. 

‘Whereat the living mock’

These companies now like to talk about ethics. Ethics and AI. Ethics and operating in China. Ethics implies integrity, which implies your words hew reasonably closely to your actions. Within these companies lie mighty chasms between preaching and practice. Silicon Valley corporate culture is intensely secretive. Their PR machines and privacy dashboards have a soothing bedside purr that belies the aggressive resistance to regulation and enforcement. Obfuscate and deflect (argue that the enforcer lacks jurisdiction), defer and buy time to adjust business practices smoothly, a luxury not available to most companies. Plead to be acting in public interest – when in fact the only mandate is to maximize shareholder value. Groom and charm the policy makers, batter the regulators that dare to charge with a violation.

When a private company becomes so powerful it can stymie or shape the laws that seek to constrain it, and then deploy its lawyerly heft to slow the wheels of enforcement so they grind so finely a harmful business model can remain intact, then it is not only democracy at stake, but the rule of law itself.

[Quotations are taken from W. B. Yeats’s ‘All Souls’ Night’, written in Autumn 1920]

Angels of history

This is how one pictures the angel of history. His face is turned toward the past. Where we perceive a chain of events, he sees one single catastrophe which keeps piling wreckage upon wreckage and hurls it in front of his feet. The angel would like to stay, awaken the dead, and make whole what has been smashed. But a storm is blowing from Paradise

Walter Benjamin, Theses on the Philosophy of History

With the death of Ruth Bader Ginsburg, 44 days from the election, the United States inches closer to a precipice. Just thinking through the possible ramifications makes me nauseous in the half-light of these pre-breakfast hours. The turbulence of the country’s 19th century history is back, in the early 21st century, at the beginning of the end of its global hegemony. Only this time round, the consequences cannot be localised. Civil liberties and the planet now depend on a few million unlikely and swing voters in Florida, Arizona and Pennsylvania.

Another heroine died last week. I was not old enough to remember Diana Rigg’s Emma Peel in The Avengers, brandishing that little pistol with all the menace of a dessert spoon at a society dinner. It was only when she played opposite Miss Piggy in the Great Muppet Caper that I was first struck by her knowing, indulgent look – a look that seemed always to say, ‘Yes, but come on, it’s only a party game’. Her Lady Holiday, who had her ‘fabulous baseball diamond!’ stolen, with the pig falsely framed for the heist before Kermit and friends rallied to save the day, was just the latest in her line of characters of towering chic.

I saw her stealing the stage at the Albery, in June 2004, as Mrs Venable in Suddenly Last Summer. In those days I tended to scribble my notes blindly in the dark auditorium on a print-out of one of Michael Billington’s theatre review. The curtain lifted to reveal an enormous, searing space, thumping like a factory with a piercing, dissonant monotony (‘the vast garden-jungle set inside a circular drum’).

Hot, waaaay hot!” Rigg oozed.The one-act play is a brutalising stand-off between her with her daughter Catherine, Victoria Hamilton, shaking and twitching with each drumbeat of horror at what she has witnessed. Rigg delivered Williams’ lines like a lyric pugilist-poet, verbal jabs, doubling back, reeling you in. “Most people’s lives—what are they but trails of debris, each day more debris, more debris, long, long trails of debris with nothing to clean it all up but, finally, death.”

Bader Ginsburg said her ‘most fervent wish’ was to be replaced on the Supreme Court only under a new president.A forlorn sentiment, ringing with the pathos and tragedy of one of Tennessee Williams’s own imagined menageries.

Un omaggio

This reflection on the life of my boss, Giovanni Buttarelli, was originally posted on https://iapp.org/resources/article/memoriam-giovanni-buttarelli/ and has been repatriated here, a year to the day since he passed away.

I don’t have many photos of me and Giovanni. Just as well, because his svelte poise only threw into ever-starker relief the balding squatness of my advancing years. I found one, though, captured when with the assistance of my (surly) two year old, I had rushed a document for his signature before he went through the security gates at Brussels airport.

He was entitled to be confident, and not only because of his debonair demeanour. He had a global fan base, the extent of which we are only beginning to fathom, as the tributes come flooding in. But a more important endowment was his self-doubt. He concealed it expertly, but I believe it was what made him intensely sensitive to what other people thought and said, and what gave him his insatiable hunger always to do more and do better.

Thanks to him, our floor was suffused with the smell of proper coffee. “No coffee, no meeting,” he warned his personal assistant, arriving in the office one morning. On another occasion, she was scandalised when I said he had asked me for another tazzina. That would be his fifth of the morning, she said. No way. I will make him a decaffeinato.  

“We need to be more communicative,” was one of his refrains. But not too communicative: “We have to speak in an institutional language,” he would say if my drafts got too fruity. Overall, he wanted data protection to descend from its ivory tower, and demonstrate its relevance and value in the real world. He likened arid legal opinions to recitals of the Mysteries of the Rosary, which he would recall in monotone solemnity:

Nel primo mistero gaudioso ricordiamo l’annunciazione dell’Angelo a Maria Vergine…

Nel secondo mistero gaudioso ricordiamo la visita di Maria Santissima a Santa Elisabetta...

He worried about parochial jargon being a barrier for reaching out to non-specialists. Data protection was about showing respect for people. It was not an absolute right. It does not block technological progress or public safety or other things that society cares about; it’s essential for ensuring these things are done responsibly and sustainably. Take risks, don’t hide behind consent, but own those risks. Data protection lawyers, Giovanni would say, should not be like the Trappist monk from Non ci resta che piangere who appears from nowhere to harangue the unsuspecting Massimo Troisi with a reminder of his mortality: Ricordati che devi morire! Engage with the policy and be persuasive.

Giovanni’s priority as Supervisor was to be more ‘conversant with technology’. So in the first year of his mandate he went to Silicon Valley. He left convinced that the biggest challenge was not compliance with arcane data protection rules. Rather it was the assumption, across boardrooms, venture capitalists and garage start-ups, that the only way for digital services to be profitable was to track people, profile and target them. Giovanni began to pepper his talks and articles with the mantra of ‘the dominant business model’, before it became cool to do so. Only latterly did he have the chance to connect with fellow traveller Shoshana Zuboff when at the beginning of this year she came to Brussels to unveil her monumental exposé of “Surveillance Capitalism”. At his last public event, a high-powered powwow on privacy and competition that he co-hosted with the German Federal data protection commissioner, each of his fellow panellists echoed the phrase. Giovanni’s diagnosis was no longer eccentric and ‘out there’, it had become the new orthodoxy.

Giovanni was a policy entrepreneur. He spotted opportunities and threats on the horizon before others did. In 2015, with the data protection world absorbed with the GDPR negotiations and the judgments in Schrems and Google Spain, he pitched the concept of ‘digital ethics’. He argued that artificial intelligence and smart-this-that-and-everything challenged not so much privacy as the basic, universal and inviolable right to human dignity. He got the world talking about ethics and technology at the 2018 international conference of privacy commissioners. Now chatter about “ethics and AI” has become so commonplace it risks descending into banality.

Giovanni, following his predecessor Peter Hustinx, saw – again long before it became cool – that privacy in the age of digitisation was inseparable from market power and therefore competition enforcement. It was in his garage, setting off to deliver a speech to antitrust lawyers, that the idea of a ‘Digital Clearinghouse’ was hatched. It would bring together all willing enforcement agencies with responsibilities for digital markets. By July this year, he would share a platform with an outgoing Secretary General of the European Commission who called on multiple regulators to act as if they were single regulators, and predicted that the convergence between privacy and competition would be ‘a running theme’ for the next five years.

Giovanni was alone in 2017 in telling us that the novel obsession with ‘fake news’ pointed to an underlying, systemic data protection problem. Data protection was not just about the individual – it was a core safeguard for societal cohesion and democracy itself. It is now cool to say this. There is no greater compliment to the man than that he has others now reading from his playbook.

It was on such broad canvasses that Giovanni painted. But what most engaged him were the finer details of legal texts; he was a magistrate probing arguments, teasing out potential ramifications. Watching him in action from close quarters was a great privilege. He would not impose his views but lead you through legal quandaries to a satisfactory conclusion. For several brain-sapping weeks in early summer 2015, he convened marathon sessions with the EDPS’s best lawyers to pick over three competing versions of GDPR, by then into its fourth year of negotiations (the Commission’s original proposal, the European Parliament and Council amendments), along with the EDPS’s own extensive opinion from 2012. The result was a GDPR mobile app juxtaposing the different texts with the EDPS’s advice on how to resolve the discrepancies.

Privacy was his last profession and he practiced what he preached. He did not burden his closest colleagues with his personal affairs. And he never meddled with mine, except after I told him my wife was expecting again and he advised us to go buy ourselves a TV. There was no need for him to pry, because I know he cared.

The world was robbed of Giovanni too soon. His mind was awash with ideas. Recently he was finalising a ‘manifesto’* for the future of privacy. In one of his last messages to me, he said, to paraphrase, “This had better be the best document of all time. I want the whole world talking about it. Balls of steel.” Then, after a pause, “You too are playing with your future with this document. Get it wrong and you will end up in la merda.” In our final conversations, we spoke about the climate crisis and how technology instead of being part of the solution had instead become part of the problem with its carbon-emitting data-madness and reckless natural resource extraction. He had plans to visit China.

I wish I could remember more. I wish I had written down all his obscure Latin phrases and his tawdry Roman dialect expressions. But he has left us with plenty to be getting on with. So many words. Parole, parole. Some receding, others lingering, like ghosts at cockcrow.

Grazie, caro Consigliere.

* Giovanni Buttarelli’s manifesto, Privacy 2030: A New Vision for Europe, was published posthumously in November 2019.

Beyond the new Five Evils: Imagining a post-pandemic democracy

five-giants

This is a sketch of an idea for a possible way ahead. Any comments are more than welcome so this post can be improved.

The global disruption wrought by the COVID-19 pandemic is on a scale not seen since World War II. The pandemic has made the air cleaner, the streets safer, and forced us to spend time with our closest family members and/or find inventive ways to keep up relationships with other family members and friends. Restrictions are now slowly easing in many countries. It is not clear for how long. The reality is likely to be the globalisation of the SARS virus and its multiple mutations for years, even decades, to come. Subsequent waves of the virus are inevitable, but further near total lockdowns may not be tolerated by certain societies. Cataclysmic events necessitate rebuilding but not necessarily according to pre-cataclysmic plans.

There is a case for a coalition between people and organisations that want a more equitable, sustainable and resilient future for our democracies. It can begin with discussions across disciplines on three big broad fronts:

  • Deconcentrate markets and release sovereign democratic societies from dependence on benevolence of a handful of private digital monopolies that limit the scope for safeguarding privacy and other civil liberties
  • Using a mix of incentives, prohibitions and sanctions reorient work towards activities that respect the natural environment and empower the most vulnerable
  • Rebuild the public sphere and independent journalism, require information and communication monopolies to comply with public service standards

Economy and society

Certain industries and professions are suffering badly. The picture is mixed. The crisis could cull services of general societal benefit while entrenching those whose effects are deleterious to democracy, freedom and justice. Independent journalism was already reeling from Facebook and Google, who as advertising  intermediaries suck revenue out of news and, as social media companies, drove traffic to low-quality, outrage-inciting click fodder that sucked competition and trust out of the news.  With COVID-19, journalism is now in a critical condition.

Selective government interventions, lacking any intellectual cogency, create numerous absurdities. They provide free subsidies to small businesses selling vaping merchandise, while forcing independent dentists to stay closed leaving their patients’ teeth to rot.

Ultra-mobility enabled by fossil-fuelled travel seems not so essential after all.  Yet governments have been receptive to the airlines’ clamouring for bailouts. Similarly, the crisis exposes the overblown scale of the meat industry– yet the US administration has ordered meatpacking plants to stay open and slaughter animals that noone is going to eat.

The pandemic has not been a social leveller.  Office workers can work from home. People doing manual work cannot. Lower paid workers are told by governments to go to work and expose themselves to the virus on public transport.

Monopolies gain strength, at least relative to their competitors. Investors have decided since the onset of the crisis that the digital gatekeepers represented the safest haven for their money. Facebook has set up its own ‘oversight board’ to ‘moderate content’, where it suits them, on the digital public space that they own and control and that most of the connected world has no realistic option of avoiding.

American and Chinese digital monopolies are seeking to control the infrastructure of the internet, particularly around the Global South.  Mergers and acquisitions are the typical response to sluggish growth. Some antitrust and data protection enforcers have explicitly conceded an unwillingness to enforce the law during the pandemic.

Technology

The crisis has demonstrated the value of internet connectivity, as well as exposing the digital divide. The ability for people to remain in constant contact and hold virtual meetings, to broadcast news and entertainment has been priceless.  Connectivity has provided a lifeline for society in a lockdown. The dangers of allowing this infrastructure and applications to be controlled by a handful of private companies are now self-evident.

However, the crisis has exposed the breathless hubris of far-out technologies like ‘AI’ and ‘blockchain’. They cannot, after all, save the world. The hitherto burgeoning facial recognition industry has been snookered by face masks. But surveillance technologies are being deployed to enforce the lockdown. There are extraordinary images of drones that broadcast social distancing and roving robots that tell people to get off park benches.

Policy makers have been mesmerised by the idea of COVID-19 mobile apps when less than 70% of the global population own smart phones with mobile internet access. The elderly and children are almost by default excluded from this unproven solution. Accordingly, this has not been driven by epidemiological evidence or demand from frontline public health professionals. We hope it serves as more than a convenient distraction from failure of the state to provide basic necessary healthcare and precautions to all.

Google and Apple’s announcement of API to support only certain contact tracing apps has enabled them, as indispensable digital monopolies, to usurp the role of democratic state in as the purported guarantor of the right to privacy.

Democratic institutions

A generation is now reaching maturity who formative years have been against the backdrop of the financial crisis of 2007/2008, the rise of populism and techno-authoritarianism and retreat of democracy, the digitisation of almost everything, the first terrifying signals of global warming and environmental degradation, and now the great pandemic.

The de-globalisation and uncoupling of industrialised economies was already well underway, but has been accelerated by the pandemic. Supply chains had become too leveraged and vulnerable to shock, while governments slashed budgets and taxes for the already well-off. Sovereign democratic states are fully entitled to assert and rebuild self-sufficiency, but it cannot be at the cost of solidarity between those states. The transparency and accountability scorecard of governments has varied wildly.

The 21st century is likely to be defined by how the United States and China get along. The European Union project is facing the latest and greatest in a line of shocks stretching back to its aborted attempt to write its own constitution, now nearly two decades ago.

In spite of the unprecedented crisis, policymakers remain more concerned with preserving the hermetically sealed sanctity of their specialisms. Monopolies and markets, over here. National security, over there. Fake news and free speech, over there. Human rights, over there. Education, over there. Healthcare, over there. Environment, over here.

A new Beveridge?

The architect of the post-World War II welfare state in Britain, William Beveridge, targeted what he called the ‘Five Evils’ of want, disease, ignorance, squalor and idleness. The five evils a post-COVID globally-minded democratic society needs to target remain broadly the same. They require updating, however, because each of these ‘evils’ are the product of excessiveness, recklessness and the absence of democratic control.

  • Want: excessive wealth and market power are complicit in the perpetuation of poverty and malnourishment – inexcusable in an age of such abundance.
  • Disease: healthcare and medicine is the most lucrative of activities yet health inequality is growing.
  • Ignorance: corrupt government and the weakening or capture of democratic institutions, including the media, alongside the opacity of algorithmic dissemination of digital content, perpetuates prejudice, obfuscation of where real power resides, and scepticism of scientific knowledge.
  • Squalor: the result of disdain for and degradation of our natural environment.
  • Idleness: not so much people without employment as the absence of genuine value creation inherent in highly remunerative professions in finance, technology, consulting and public administration.

How?

Rebuilding more just and sustainable democracies during and after the crisis requires addressing all of these interlinked challenges. Moreover, it requires working against the grain of increasing polarisation – not only between ‘left’ and ‘right’, but also within progressive movements. Algorithm-driven social media stokes these divisions, encouraging inane virtue-signalling and tone-deafness to alternative opinions that lack the requisite degree of ideological purity.

The first step could be a simple one: a beginner’s guide on why and how you should stop criticising your friends and allies.

Work-life imbalance

flowerThis COVID Spring is replete with pathetic fallacies. You can hear the birds, streets are safer for walkers and cyclists, the sky is no longer striated by aircraft fumes. In New Delhi children have seen a blue sky for the first time in their lives. Human have been forced to leave nature alone and the collective senation is staggering, like the Hebrew slaves emerging from Babylonian captivity in the final scene of Verdi’s Nabucco.

Meanwhile the crisis is going to produce many casualties beyond the actual lives lost. Journalists are being sacked. Pubs and breweries will fold. Funding and sponsorship will dry up for artists. The novelty of the crisis induces monumental lapses of judgment that expose the weaknesses in role models – some will be ignored, some never forgiven. Inequalities will grow starker, monopolies and autocracies more entrenched than ever.

The pandemic is also tipping back the balance of power in the workplace. CEOs sit prettier than ever. Office employees with contracts can hunker down amidst digital paraphernalia until it all blows over. Small businesses can be kept afloat by government largesse. Gig economy workers have nothing. Low paid manual workers still have to bus and tram to work and so more likely exposing themselves and their families to the virus.

Work-life balance had become a mealy-mouthed nostrum of the 21st century employer in the Global North, but in these curious times there is scant appreciation for people with caring responsibilities expected to work from home. People I hardly know except by their voice on the end of a digital connection – mostly men – may have nothing else worth doing in their lives other than work. My wife and I put on our professional voices muting out the background noise. I scamper away comedically from our three toddlers shutting doors behind me to find a quiet room within range of the wifi signal.

Endless virtual meetings run by people with no idea how to structure and chair and keep to an allotted time or how to allocate work efficiently… voices droning in the background as I boil pasta, empty the dishwasher, take a shit, fumble for the remote control to display Netflix or CBeebies, scramble for a connection to the afspraak with one of the kids teachers.

We pretend to hold it all together gracefully, because with the video disactivated and the sound muted you can hide the chaos around you. If the staid men in their silent, Empyrean home offices can detect what is going on, they are too discrete to comment or too aloof to care. (I should not bite the hand that feeds us.)

A good employer might say – Take care of yourself and your nearest and dearest. Think of your physical and mental health before anything else. I hear this a lot less since the lockdown. Some people having to look after kids or elderly parents or family members with handicaps cannot follow such soothing advice in these extraordinary times – they may have demanding clients who themselves are strugging to keep their heads above water – so they are forced to work at night.

These sleep deprived souls are already teetering on the edge of breakdown. Others may have the luxury of being able to slack off work – but while they are slacking, their lonelier, less encumbered – probably more male – colleagues are stealing a march. And who can blame them?

Even in lockdown a full-time job is a full-time job. But schooling just one child or creching just one toddler is also full-time job. Cooking and cleaning up after a family is a full-time job. Something has to give. (I shouldn’t be wasting my time on this blogpost.)

I am guilty too – my wife does more than her fair share of housework and childcare, even though her job is more important than mine. We feel like we are failing on each and every front. Still we keep on.

Privacy in the time of Corona

southkorea‘History is bunk’ – so said Henry Ford, allegedly.

He was wrong.

Privacy is not ‘bunk’ either, but its debased currency in public policy debates certainly is.

The current unfolding catastrophe has the rights to privacy and data protection under siege (or in lockdown, if you prefer) because, of course, all problems in the world would be solved if only we could ditch those constraints on the use of others people’s personal data.

It’s now “privacy or combat the corona virus” just like – in our now forgotten world of a few weeks ago – it was “privacy, or AI-driven digital growth” and “privacy, or [insert the thing you want to do]”.

The allure of dualisms is their simplicity, a quality we sorely miss in real life. I got thinking about this when I saw this local parish bulletin by Michele Loi, which is well worth reading, and this excellent twitter thread initiated by Paul-Olivier Dehaye.  We are having these wearying discussions because privacy has become a proxy for digital regulation; because data is collected all the time and we don’t know why or for whose benefit. We do know, however, that there are a small handful of companies and governments with the power to collect and use the data at scale, and that they are scarcely to be trusted.

So now, with a global emergency, we have an opportunity to make the data work for the general good, to use it protect our fellow human beings against a devastating virus.

Noone is seriously questioning whether we should suspend an individual’s right to be left alone and to be treated with dignity. We live in society so that we can look after one another. Such caring can require intruding into someone’s intimate sphere – metaphorically and digitally speaking, and ironically at the same time as physical proximity becomes taboo.  We consent to the intrusions if we believe authorities in charge are democratically accountable for their actions, that certain rights and freedoms can be temporarily limited or even suspended when necessary, but that certain rights – to life and to dignity – are always held inviolable.

I would suggest that those who claim privacy stands in the way of saving human life fall into one of three categories:

a) the mischief-makers (they want to profit from the crisis and in process rid themselves of turbulent regulations),

b) the under-informed (this is no cardinal sin – the laws on digital privacy have become far more complicated than they should be), or

c) the blinkered legalists, who think that reverence for the prolix prescriptions of the GDPR outweighs the need to combat the most serious global emergency since 1945.

Whoever is pushing this proposition, it is a dangerous fallacy.

The way privacy has been written into law may be bunk, but privacy itself never has been, is not and never will be. So stop worrying about privacy. Start worrying about governance, the rule of law and democracy. Those are the key battlegrounds for life and liberty in these surreal times. COVID-19 is democracy’s test run for the true reckoning facing our species in the coming decades: global warming.

The Hours

Her words faded. So a rocket fades. Its sparks, having grazed their way into the night, surrender to it, dark descends, pours over the outlines of houses and towers: bleak hill-sides soften and fall in.

Virginia Woolf, Mrs Dalloway

Virginia Woolf was living in Rodmell, West Sussex when, on an early spring day during Britain’s darkest hour in 1941, she filled her overcoat with stones and threw herself into the nearby River Ouse. She was 59, and it was her third and successful attempt at suicide.

When I was young, I walked the South Downs Way from Winchester to Eastbourne, laden with tent, book and light wallet, an ancient thoroughfare over emerald hills dotted with round barrows and hill forts, a soft quilt laid on clay and chalk. On a sunny day the folds and creases of the Downs separate the variegated patchwork of the Sussex Weald from the twinkling English Channel. The South Downs Way crosses the Ouse at the village of Southease. This is where Woolf’s body washed up a few days after her disappearance. In high summer when I was there the river didn’t seem capacious enough to envelope and extinguish a human life, however despairing.

Last summer I read Woolf’s slim 1925 novel Mrs Dalloway. It rewards a swift reader able to take it in over a few sittings and be swept along in its rare currents – not the way I did: 15 precious minutes per day for several weeks, hunkering down in the toilet to evade mercurial toddlers and dyspeptic responsible adults. Woolf’s prose swoops and soars, the narrative voice a butterfly alighting from one of its multiple subjects to another, holding a microphone to their lonely thoughts.

It is one of the finest novels of the 20th century, and probably the finest to be set in London. ‘Fear no more’, the refrain in Clarissa’s mind echoes the heartbeat and the striking of the hours by Big Ben. (Henri Bergson’s theories of time were then in fashion.) The clocktower serves as the epicentre of the novel whose chimes in 1924 may still have been in earshot of each of its scenes forming an elliptic arc of narrative and geography – Westminster, Regents Park, The Strand.

The inevitable but still shocking climax is the suicide of poor, shellshocked Septimus Warren Smith. Unlike in Ulysses where Joyce eventually joins the paths of the two protagonists in the riotous brothel of the Circe episode, Woolf only once and fleetingly brings Clarissa Dalloway and Septimus together, and even then the one is unaware of the other. When she hears of his suicide she is initially put out that such unpleasantness should intrude on her party (‘with the clock striking the hour, one, two, three, she did not pity him, with all this going on’). A short while later Clarissa seems attracted to the notion of oblivion that Septimus has now achieved, the lights going out at last.

I completed my reading while on holiday in Dębki, a Polish seaside resort on the eastern banks of the Piaśnica river as it empties into the Baltic Sea. The river formed the Polish-German border between the wars. A sign declaring ‘GRANICA’ in the severe, sinister font favoured during the period is still there on the northern bank of Lake Żarnowiec as a reminder, from which point the river resumes its course for another 10 kilometres before emptying into the sea. Here, one afternoon, my six-year-old and I rented a kayak adorned with a crocodile face and drifted downriver, weaving between other carefree holidaymakers, skirting the reed-beds in the company of dragonflies, pond skaters (or ‘water spiders’, as she called them) and the occasional swan. Later I returned to the place of embarkation to collect the bicycle. I cycled along an embankment as the sun sunk towards the horizon over hot empty fields. I pictured the uneasy peace in the area precisely 80 years ago, while Hitler and Stalin plotted their horrific double invasion and the Polish regime scrambled despairingly for international support. Within weeks the Nazis would launch their onslaught over that border. Poles undoubtedly had a sense of foreboding but noone could have predicted the scale of barbaric cruelty about to befall them. We kayaked downriver from the site of the first mass executions of Poles by the Nazis. Poland’s allies Britain and France sat on their hands.

Borders of the imagined communities of nations have shifted over the centuries in these parts like the sands along the duney northern European coastline. Poles, Germans, Ukrainians, Russians, Belorussians and the neighbours have had their lives upended for centuries according to the vicissitudes of the ruling classes and their wars and marriages.

England knows nothing of this, though its immigrants and asylum seekers – those now ostracised by the xenophobia that at once fuels and is legitimised by Brexit – certainly do. Instead, the society rests on class distinctions that are the accumulation of a millennium of largely stable land ownership, insulation from revolutionary shock or foreign invasion (except for William of Orange’s invasion by invitation in 1688) and absence of population displacement. Such class distinctions explain Clarissa’s fey insouciance towards Septimus’s torment.

By contrast, in Septimus’s wife Rezia, Woolf depicts an unbearable loneliness where her vain words briefly illuminate and fade like sparks at night-time, reminders of the visible world that only proves its continued existence at daybreak: ‘at midnight, when all boundaries are lost, the country reverts to its ancient shape, as the Romans saw it.’

…she feared time itself … the dwindling of life; how year by year her share was sliced; how little the margin that remained was capable any longer of stretching, of absorbing, as in the youthful years, the colours, salts, tones of existence…

Clarissa, by contrast, is nonchalant, airy, too comfortable to be capable of empathy.  (Note Woolf’s sardonic interjection as the character’s recalls to mind an erstwhile kindred spirit: ‘If I ever have a moment (she will never have a moment) I shall go and see Sally at Ealing.’)

Historians are haunted by the spectre of the 1930s. In the novel, there is a chill augury in the scene of a band of boys with their guns marching up Whitehall.  Clarissa’s adolescent devotee, Peter Walsh, imagines them ‘as if one will worked legs and arms uniformly, and life, with its varieties, its irreticences, had been laid under a pavement of monuments and wreathes and drugged into a stiff yet staring corpse by discipline.’ The unspeakable cruelty of the Second World War began on the plains of central Europe while England filed its nails. Clarissa Dalloway, attractive, pampered, earnest and narcissistic, embodied her nation.

There! Out it boomed. First a warning, musical; then the hour, irrevocable. The leaden circles dissolved in the air.

 

In memoriam to Clive James

On WH Auden’s ‘The Cultural Presupposition’.

‘Happy the hare at morning’ – is a fine beginning to a poem.  And the ‘rampant suffering suffocating jelly’ sounds like the sort of pointless insult Boris Johnson would fling at Jeremy Corbyn.

The poet surveys the inevitable decay and demise of all things. Art is humans flicking the bird at fate. ‘How comely are his places of refuge and the tabernacles of his peace’ – Auden parodies the Psalmist as an unsubtle reminder that religious paraphernalia are attributions of our own necessary comforts to an imagined Being – ‘The new books upon the morning table, the lawns and the afternoon terraces!’ (Yes, that couplet is plainly a Psalmodic pastiche.)

Then the poet takes a darker turn – most of his early poems are dark echoes and premonitions of war and cataclysm: ‘The galleries are full of music, the pianist is storming the/ keys, the great cellist is crucified over his instrument.’ Crucifixion returns us to Scriptures and the New Testaments horrific pivot, more horrifying still for the image of the ritual slaughter of someone on his very device of artistic diversion.

The final evocation of music as serving to drown out the cries of death, ‘that none may hear the ejaculations of the sentinels’ and the ‘sighs’ of the great mass of the expendable poor, ‘the thud of their falling bodies.’