SURVEILLANCE CAPITALISM, TWO HORNS OF THE DILEMMA: DIGITAL LIBERTARIANISM AND DIGITAL AUTHORITARIANISM

Abstract

In the article “Thomas Aquinas, Ronald Dworkin, and the Fourth Revolution: Law in the Age of Surveillance Capitalism,” I argued that Surveillance Capitalism – an emerging economic model highlighted by Shoshana Zuboff – operates at the level of social imaginary and emergent law. In this context, I compared the thought of Ronald Dworkin and Thomas Aquinas on the foundations of law and articulated three distinct foundations of moral and legal reasoning. First, moral and legal norms are grounded in ontological norms – or descriptive ought statements that effectively (though imperfectly) articulate the interactions of powers and possibilities in an inherently orderly cosmos. Second, they operate within the horizon of custom. I analyzed custom in terms of social imaginary and emergent law and recognized some tension between these concepts – we must balance the role of the community and the individual in understanding how custom comes about and influences human behavior. Third, I argued that moral and legal reasoning rely upon virtuous exemplars in their formation and that they aim at developing both individual and communal virtue in their application. Surveillance Capitalism presents a threat to these three foundations because it seeks to operate primarily within an economy of attention and only secondarily in an economy of action. By doing so, those who employ and benefit from Surveillance Capitalism hope to shape the customs that ground the rule of law. Finally, considering this I argued that law and policy approaches are insufficient as a sole or primary response to the challenges posed by Surveillance Capitalism. Law and policy do play a role in an effective response, but they must be developed in tandem with and in support of personal habits and communal virtues in both the general populace and in the data engineering and science community. To these areas of focus, we may add the development of technologies that actively protect both privacy and reasonable freedom.