The Rise of the Digital Robber Barons: Is government up to the task at hand? - LawNow Magazine

The Rise of the Digital Robber Barons: Is government up to the task at hand?

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Given Canada’s history, we can anticipate that any plans for the federal government to use its “super powers” could erode our civil liberties. We must vigilantly protect fundamental rights and look to the courts to affirm, and in some instances extend, the reach of our Charter protections should government threaten our rights. However, in this article I wish to offer for consideration something of a different perspective – that one of the grave dangers of this decade is that Western governments will fail to exercise their powers to protect citizens.

With good management, Canadians can hope to surmount the immediate challenges posed by COVID-19. There was brief debate about whether or not the federal government should invoke the powers of the Emergencies Act and declare a public health emergency to address the pandemic. Ultimately, cooperative efforts by the federal, provincial and territorial governments sufficed.

A Look Back

If we cast a glance back at Canadian history, we can surely conclude that, in real or imagined emergencies, the federal government is capable of overreacting and temporarily interfering with basic liberties. The predecessor legislation for addressing emergencies of various kinds was the War Measures Act. The federal government employed this Act, in a draconian fashion, during and immediately after the World Wars. A key chapter of Thomas Berger’s outstanding account of human rights and dissent in Canada, Fragile Freedoms, recounts the mistreatment of Japanese Canadians during and even after the conclusion of World War II. Berger emphasizes that the evacuation and internment of Japanese Canadians represented a horrible instance of mass racial hysteria, made worse by the egregious conduct of the federal government under Liberal Prime Minister Mackenzie King. During the Hearings of the Special Joint Committee on the Constitution in 1980 and 1981, which considered necessary improvements to the proposed Charter of Rights and Freedoms, the committee agreed that such events must not be repeated. Not only did the government employ racist orders-in-council to deport to Japan residents and Japanese Canadian citizens, but the courts of the day were of absolutely no assistance. Lacking, for the most part, a “rights consciousness”, they rejected most of the valiant arguments of Andrew Brewin, the deportees’ counsel and a leading democratic socialist of the day. (See Reference Re Persons of the Japanese Race (1946) SCR 248, affirmed by the Privy Council.) Brewin later successfully persuaded the federal government to establish a Royal Commission to examine the question of compensating Japanese Canadians whose property had been confiscated without any payment.

Given the “super powers” exercised by the omnipresent Big Daddies of the digital age, it is past time to examine just what the Canadian government has been doing in response.Canadian politicians, with broad support from citizens, ultimately agreed to enact a Charter of Rights and Freedoms as part of the patriation process that concluded with the Canada Act, 1982. A decade later, the government introduced a new emergency powers statute. Thankfully, the Emergencies Act emphasizes that the government cannot override the fundamental rights enshrined in our Constitution if they invoke emergency powers. This should do much to address the dangers that previously existed in allocating broad discretionary powers under the War Measures Act.

While the dangers of national governments using their powers in ways that undermine the freedoms of their citizens were apparent in a study of emergency measures undertaken in the first half of the twentieth century, this should not lead us to ignore other dangers to the cause of freedom in our time. We might recall the drama that unfolded upon the release of George Orwell’s classic dystopian novel, 1984. Several of the first critics, particularly in the U.S.A., took the satire as a thinly veiled account of left-wing governments of the day, whether democratic as in Britain or dictatorial as in the Soviet Union. Orwell was sufficiently perturbed to issue a statement through his publisher. He was a clear supporter of the Labour Party (then in power) and had long been a democratic socialist. He hardly wanted to imply that the major social reforms and regulation of business taking place represented “Big Brother” in action. Indeed, Orwell made clear his disdain for unregulated and therefore predatory forms of capitalism in his review of the writer who would become a guru of the politicians and economists of the neoliberal revolution of the 1980s, Frederik Hayek. Vigorously responding to the arguments in The Road to Serfdom, Orwell asserts:

[Hayek] will not admit that a return to “free” competition means for the great mass of people a tyranny probably worse, because more irresponsible, than that of the State. … Hayek denies that free capitalism necessarily leads to monopoly, but in practice that is where it has led…

The Digital Era

Some decades into the current neoliberal era, we observe precisely the developments that Orwell criticized. In today’s digitalized economy, monopoly capitalism has taken on a life undreamt of in the worst nightmares of this activist of the left who spoke of the need for “new blood, new ideas and in the true sense of the word, a revolution.” Many books have been written on the massive powers exercised by the major digital powers – especially the Big Four (Facebook, Google, Amazon, Apple) and we could add Microsoft, as well as Saudi Aramco to the list of threatening tech giants.

It does not seem that long ago that the internet and the world of “big data” were claimed to represent a new era of enlightened connectivity and democracy. All the while, however, the gurus of Silicone Valley were working feverishly to monetize all of the data that had been collected. Now a time of rapid disillusionment has set up. I can gaze at the titles of a number of recent studies:

  • “Antisocial Media: How Facebook Disconnects Us and Undermines Democracy”;
  • “Move Fast and Break Things: How Facebook, Google and Amazon Cornered Culture and Undermined Democracy”; and
  • “Race After Technology”.

The last in particular is a penetrating study by Ruha Benjamin of the myriad ways technology is perpetuating racism and entrenching racial hierarchies.

The most expansive recent account of the new shift in our economic and political systems appears to me to be Shoshana Zuboff’s. In her book, The Age of Surveillance Capitalism, she details the quest by powerful corporations to predict and control our behaviour, exerting unprecedented power over our lives in the process. Unimaginable wealth and unchecked influence are rapidly accumulated in the ominous new “behavioural futures markets.” As she explains, the major threat today is less a Big Brother state than an omnipresent digital honeycomb or trap. What is particularly dismaying is the lack of regulation of the big tech companies, as surveillance capitalism grows by leaps and bounds. Democracy and the values of dignity and autonomy are disfigured in the process.

In sharp contrast to the rather lackluster use of federal powers to address the manifold issues that have arisen with the massive, disruptive presence of Big Tech in Canada, one can look to the European Union at present for leadership.Given the “super powers” exercised by the omnipresent Big Daddies of the digital age, it is past time to examine just what the Canadian government has been doing in response. It is fair to state that Canada does have some laws that ostensibly protect the privacy of Canadians and might just possibly hold Facebook and the other tech giants to account. A review of the Personal Information Protection and Electronic Documents Act (PIPEDA) would, on a superficial reading, lead one to believe that privacy interests are protected. Yet surely far more must be done.

Readers can review for themselves the federal government’s “Canada’s Digital Charter in Action: A Plan by Canadians, for Canadians” report, issued October 2019. To my reading, the report is long on generalities. It fails to register the need for urgent action and making proper use of the extensive powers the federal government has to meaningfully regulate these foreign corporations. Instead, these corporations earn massive sums and operate at will in the Canadian marketplace and social sphere, acquiring greater and greater dominance in the process. No one can argue with the goal of harnessing technological advancements for economic growth and prosperity. However, it is vital to meet the monopolistic practices of the tech giants with new laws. These new laws should safeguard citizen’s interests not only in a genuine protection of their privacy rights, but also their autonomy and independent decision-making, free from the predatory practices that have been clearly documented. Speaking in generic terms of a “digital Charter” for Canadians is less helpful than strengthening and modernizing competition law and bringing in a fair tax regime that would place Canadian and foreign tech monopolies on something approaching an even playing field.

The federal Privacy Commissioner Daniel Therrien issued a shout of warning in 2019 and again more recently. CBC News reports Mr. Therrien (OPC) as stating that “Canadians are at risk because the protections offered by Facebook are essentially empty” (April 25, 2019). This in relation to his Commission’s Report on Facebook’s operations, described as “blistering.” After a shocking series of actions in which the roles of Facebook and the Canadian company Aggregate IQ and the British firm Cambridge Analytica faced severe criticism, a Canadian investigation occurred. This was in response to media reports – it took investigative journalism to uncover the wrongdoing. And an investigation has only occurred long after the alleged illegal harvesting of personal data of more than 600,000 Canadian users of Facebook (and an alleged 50 million users worldwide). The report found that the company broke a number of federal and British Columbia laws, including;

  • failing to obtain valid and meaningful consent of installing users;
  • failing to obtain meaningful consent of friends of the users;
  • having inadequate safeguards to protect user information; and
  • failing to be accountable for the user information.

Mr. Therrien revealed exasperation in his public comments, commenting on the stark contradiction between Facebook’s public promises to mend its ways on privacy and its refusal to address the serious problem his Commission had identified. Both Mr. Therrien and the B.C. Privacy Commissioner simultaneously called for stronger sanctioning powers for Canadian regulators. To date, the federal government has not provided those stronger powers. A small step forward would be the ability to provide meaningful fines.

The OPC found it necessary as a follow-up to bring the matter to federal court, given Facebook’s adamant questioning of the correctness of the report. Facebook seeks a ruling that the findings and practices of the Commission were not impartial and lacked procedural fairness. This lengthy process – far from resolved as of this date – and the meagre consequences for the tech giant is strongly suggestive of the inadequacy of the status quo.

… one of the grave dangers of this decade is that Western governments will fail to exercise their powers to protect citizens.In sharp contrast to the rather lackluster use of federal powers to address the manifold issues that have arisen with the massive, disruptive presence of Big Tech in Canada, one can look to the European Union at present for leadership. A good place to start for Canadian reformers would be a review of the EU General Data Protection Regulation and the stiff sanctions meted out to tech companies under it. Specifically, we can address made-in-Canada problems, like the tax loophole found in s. 19 of the Income Tax Act, to ensure that Canada stands ready and able to implement progressive and protective measures for the 21st century.

I might briefly mention that the federal government also possesses ample powers to promote and ensure the survival of what could be a thriving cultural sector here in Canada. The United Nations enshrines the right to one’s culture in its Declaration of Human Rights for an excellent reason. France and other European countries recognize the unprecedented challenges to local culture in the digital era and have enacted fair and supportive laws which at least partially respond in proportion.

Conclusion

There is no question that Facebook, Google and the other tech giants possess wide, monopoly powers that the robber barons of the 19th century would have coveted. This represents an ominous challenge to Canadian society on a number of fronts. One can only hope that the federal government will very soon dig deep into the velvet bag of powers it possesses under s. 91 of The Constitution Act, 1982 and enact a wide-ranging set of laws to regulate and, where appropriate, sanction these companies. Surely we must balance short-term economic growth through technological advances against the diverse needs of today’s and tomorrow’s citizens. For inspiration, we might turn once more to Orwell, who declared in The Lion and the Unicorn: Socialism and the English Genius that we must add to our heritage or lose it, we must grow greater or grow less, we must go forward or go backward.

Authors:

Rob Normey
Rob Normey is a lawyer who has practised in Edmonton for many years and is a long-standing member of several human rights organizations.
 


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