The challenges that TikTok, Google, or Amazon pose to states require more than piecemeal guidelines like the one prohibiting state officials from keeping the TikTok app on their connected devices.
The common trait of most companies that operate online is their ability to capture and derive value from the countless data produced by the activity of all those who evolve in the connected world. To establish a legal framework ensuring control of the many situations that arise in connected universes, it is important to consider data as a resource that generates value and to regulate its use accordingly.
The advent of large online platforms came at a historical time when most states had chosen to dismantle their public services. States have become dependent on Internet multinationals. For example, in The duty of May 12, 2021, Ulysse Bergeron reported that the Government of Quebec has awarded 85% of the value of contracts without a call for tenders for cloud computing services to three American giants since January 2020.
However, a resource as fundamental as data concerning citizens should be managed by public services equipped internally with cutting-edge expertise on the most efficient technologies. Instead, state leaders are choosing to outsource their responsibilities to commercial companies. When a company shows deficiencies that are too embarrassing, as is currently the case for TikTok, we act urgently to order the trashing of the application that has become suspicious. As a digital policy, it is rudimentary.
The subjection of states to cloud computing providers is part of the problem. The other part concerns digital technologies that allow the collection, transmission and analysis of traces produced by the movements of all users of connected universes. Faced with these major trends, the reflex of many is to lament the advent of a “surveillance society” where data is collected and valued by commercial companies at the cost of our fundamental freedoms. It’s okay to be sorry. But action is better.
Personal data and big data
Data are resources that relate to people. But once consolidated, they also constitute a resource of a collective nature. Big data is the major input for value creation in the connected world such as advertising targeting and algorithm-based decision-making processes. The same is true of most processes using data produced by the actions of each and every member of the community. To date, this resource is monopolized on derisory conditions by the major Internet players.
Privacy laws treat data as an essentially individual matter. This is why we stick to requiring individuals to “consent” to the collection and use of their personal data. As long as the person has consented, a company can do whatever it wants with the data it collects.
The imposition of quid pro quo for the right to benefit from massive data produced by the community should be the common thread of laws governing digital companies. Recognizing that once data has become massive (big data) are a resource of a collective nature, the States would give themselves the legitimacy to attach conditions to the processes by which the giants of the Web generate value from the data collected from a population.
Isn’t it legitimate for communities to have a say in what companies that generate value do with these resources obtained by observing the interactions of individuals who are part of the community? For example, the community should have a say in the operation of the algorithms generating, from massive data, music or film proposals on Spotify, YouTube or Netflix.
We must insist: recognizing massive data as a resource of a collective nature does not mean that the State is entitled to monopolize the data of individuals in defiance of the guarantees for the protection of their privacy and their dignity. Like the air and water that everyone uses, data is personal when it relates to an individual. But when air and water or data become detached from our person, they again become components of the environment, resources that involve challenges for the community. So it is normal for laws to govern how companies use it.
These days, it is TikTok that is criticized for a lack of transparency with regard to what happens to the data it collects and values. But all the big web companies live from these data valuation processes. The real challenge is to recognize that the right to use the data, which our actions and deeds produce, must come with conditions. This requires more than banishing an app for spying!