The data holder as the subject of law in capitalism of surveillance and data commercialization in the General Data Protecion Act/O titular de dados como sujeito de direito no capitalismo de vigilancia e mercantilizacao dos dados na Lei Geral de Protecao de Dados.
| Autor | Fornasier, Mateus de Oliveira |
Introduction
Capitalism of surveillance is a term coined and popularized by the North American author Shoshana Zuboff, when seeking to define the transformation in the order of political economy that constitutes and expands a new form of capitalism based on the exploration of people's behavior, that is, in all aspects of everyday life - beyond the labor paradigm. Vigilance under capitalism is paradigmatically striking, and it has been transformed throughout the accumulation processes, constituting an instrument of capitalist production; however, today all this structure created to monitor has a new purpose: the commercialization of the data obtained through it, as an end in itself.
Brazil data regulation is expressed in the recent approval of the General Data Production Law (LGPD), which, based on European regulations, constitutes a normative framework pertaining to the social and economic processes of digital data. Such law has as a distinctive mark the use of the user's consent to guarantee the defense of private and fundamental rights. However, an ambiguity in this protection is identifiable, as the text of the law recognizes a (hyper) vulnerability of users (data holders) while providing conditions for data delivery to occur. The condition of holder of personal data is defined by law in its article 5, V, as: "natural person to whom the personal data that are the object of treatment refer", i.e., it is the subject of right that transfer data to the controller and the operator - and this condition of availability is only possible through consent, defined in art. 5, XII, as "free, informed and unequivocal manifestation in which the holder agrees with the treatment of his personal data for a specific purpose".
The controversy over the legal figure of the holder in the LGPD raises his double position, or else contradictory, as a subject worthy of protection of his personal data, but as a free person to do business on the transfer of such data. In this theoretical scenario, there are researches (1) that identify the limits of the consent of the holder and the need for its complexification. However, the LGPD does not deal with specific forms, better or worse conditions of juridical effective consent, since it understands this issue comprehensively, on another scale, exposing historical and social limits to any form of personal data transfer, regardless of its adjectives. (2) As much as the validity of this law will mean a legal framework for the protection of personal data in Brazil, it needs to be seen in the context of the political economy it belongs to, which is the commercialization of data in an economy of surveillance. From this controversy, the research problem of this article is expressed: what are the limits of the consent of the holder that are enshrined in the LGPD imposed by the political economy of surveillance?
In order to seek an answer to such questioning, it is necessary to identify how this law manifests itself in the face of such political-economic form, in view of its ambiguous normative essence, which can be as much of legal resistance to data commercialization processes - related to "protection" of personal data, as the norm that provides legal conditions, from a regulatory point of view, for the constitution of a data market in Brazil - as well as as a normative mediator of these new commercial relations, tracing a legalized path for its expansion. Thus, as a hypothesis to such questioning, it is stated that the LGPD tends to allow the creation of greater conditions for the implementation of a data market in Brazil, with the consent of the holder being the instrument of regulation and legitimacy that the law provides to this new market, making data exploitation nothing more than a business deal.
The justification and importance of the research are given in the emergence of the LGPD (in 2020), (3) because its consequences will be important and faced immediately. As much as the large companies in the global data market already work with Brazilian data, precisely because they are regulated by rules that are outside the state legal order, national law can serve as a support for the expansion of this market and the creation of its own characteristics for expanding the exploitation scenario. The increasing of the requirements for the consent of users and the integration of values such as that of informational self-determination set the protection of personal data as a task of the Government and the responsibility of companies that practice data management. However, the information asymmetry between citizens and big tech expands, consolidating data extraction at the structural level.
The general objective of this article is to characterize the legal regime of personal data holder in LGPD under the concepts presented by capitalism of surveillance, having as specific objectives: (I) describe the political economy of surveillance, that is, the transformation of capitalism to that point and the role of the data holder / user of digital services and (II) identify the insertion of LGPD in the context of the economic exploitation of personal data by the instrument of consent of the data holder. Due to these objectives, the structural organization of the text is developed as follows: in its first part, the definition of the Political Economy of Surveillance will be treated - that is, what surveillance capitalism is under the historical conditions of the capitalist mode of production and the rise of a new data-related market - such as exploiting human experiences and financial assets in the market; in the second part, the LGPD will be addressed under the context addressed in the first, that is, how the law identifies and expresses itself in the context of this new political economy.
The employed method of proceeding is of exploratory study, with a qualitative approach, and the research technique used is bibliographic research with review of the literature, adopting a dialectical-materialist logic when understanding the surveillance capitalism theory and LGPD as dynamics of a same context, seeking a theoretical synthesis that concludes by exposing the contradictions and the need for data regulation in Brazil. The theoretical framework adopted to define surveillance capitalism is the work of Shoshana Zuboff (2019) and texts by Christian Fuchs, at the same time with the contribution of other authors who will confront them, seeking to answer the research problem from the connection of these prominent authors, the LGPD's legislative framework as literature, together with the Brazilian legal doctrine related to the law in question. Also, to the point of connecting the political economy of labor capitalism to data capitalism, the Marxist theory of law is used as a criticism of the subject of Law and legality.
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Political economy of surveillance
Shoshana Zuboff (2019) defines the term "surveillance capitalism" from: (I) the foundations of such a production system; (II) the advancing from the digital world to the real world; and (III) its instrumentalization. In other words, it seeks to define and identify market dynamics of how capitalism is transformed into the determination that all human behavior can be translated into data. Thus, even if part of it is used to improve services, the large remaining portion is a "surplus value" of behaviors exploited by data proprietors. The consequence of this is the formation of "future behavior markets", that is, the commercialization of data in order to predict and determine behaviors (ZUBOFF, 2019, p. 14-15).
The notion used to highlight this transformation in capitalism is that of political economy, (4) in the same sense that Karl Marx (2008, p. 47-48) did in the preface to the Contribution to the Critique of Political Economy (1859), by understanding the need to identify in the Political Economy the anatomy of bourgeois society - namely, the set of economic and social relations (5) that produce capitalism and the consequence of material transformations in the productive sphere for legal or political forms, considering that they do not manifest themselves of their own free will, but because they have roots rooted in the material conditions of existence in their totality. According to Fuchs (2011, p. 36-37), political economy focuses on the analysis of the internal and dynamic constitutions of an economic system. Such branch of knowledge is characterized as "political" because it realizes the interests and ideological bases that operate in the modern economy. In the critique of political economy, these interests are analysed in their contradictions, revealing the limitations and problems of the capitalist economy in its phenomena (commodity, exchange value, profit, money, capital and social division of labor) considered as universal and worthy of social relations and material transformations.
Such as the reference to Marxism as the means of social production that lives from exploring work, in this aspect there is a turning point, as the author defines:
It revives Karl Marx's old image of capitalism as a vampire that feeds on labor, but with a unexpected turn. Instead of labor, surveillance capitalism feeds on every aspect of every human's experience (ZUBOFF, 2019, p. 15-16). Thus, Nicole Cohen (2008, p. 18) pointed to this direction when verifying that the valorization of Facebook depended on free and immaterial labour when commercializing something that not even the users knew they were producing - the data. Surveillance capitalism introduces a new way of exploitation of life and of hyperexploitation of labour: in the same way that General Motors invented the managerial capitalism of Fordism, Google is a pioneer in surveillance capitalism - however, its methods are no longer restricted to competition among technology companies.
The relationship between political economy and surveillance, seen as a contradiction, a constituent part of the term surveillance...
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