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Big Data, Surveillance, and the Digital Citizen DOCTOR OF PHILOSOPHY Big Data, Surveillance, and the Digital Citizen Cobbe, Jennifer Award date: 2019 Awarding institution: Queen's University Belfast Link to publication Terms of use All those accessing thesis content in Queen’s University Belfast Research Portal are subject to the following terms and conditions of use • Copyright is subject to the Copyright, Designs and Patent Act 1988, or as modified by any successor legislation • Copyright and moral rights for thesis content are retained by the author and/or other copyright owners • A copy of a thesis may be downloaded for personal non-commercial research/study without the need for permission or charge • Distribution or reproduction of thesis content in any format is not permitted without the permission of the copyright holder • When citing this work, full bibliographic details should be supplied, including the author, title, awarding institution and date of thesis Take down policy A thesis can be removed from the Research Portal if there has been a breach of copyright, or a similarly robust reason. 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Oct. 2021 Jennifer Cobbe LLB (Hons) LLM Big Data, Surveillance, and the Digital Citizen Thesis submitted for the degree of Doctor of Philosophy School of Law, Queen’s University Belfast January 2018 Abstract This thesis provides an analysis of the impact of pervasive online surveillance on the relationship between the digital citizen and corporations, the state, and politics in order to argue that the United Kingdom is emerging as a surveillance state in which individual’s relationship with society is remade to their detriment. Original contributions to knowledge are as follows: 1) locating the business model of corporations such as Google and Facebook, identified as surveillance capitalism by Shoshanna Zuboff, in a surveillance studies context and connecting it with Antoinette Rouvroy’s algorithmic governmentality so as to discuss its rationality and technology of power; 2) identifying the emergence of a new role for the digital citizen in this business model as a produsumer, characterised by the production of surplus-value generating behavioural data through both production and consumption of digital content; 3) recognising state online surveillance regimes as a digital panopticon involving a new technology of power of algorithmic panoptic uncertainty; 4) assessing the implications of the forthcoming General Data Protection Regulation and the proposed ePrivacy Regulation for voter surveillance and microtargeting practices undertaken by political organisations; and 5) showing how the communications data retention and disclosure framework in Parts 3 and 4 of the Investigatory Powers Act 2016 is incompatible with EU law in light of recent decisions of the CJEU. This thesis does not seek to provide solutions or regulatory recommendations in response to the issues raised, but bring together literature, highlight problems, and propose new concepts in order to establish a basis for further research. In doing so, this thesis adopts a governmentality framework and takes an interdisciplinary approach to address the changing relationship between the citizen and society in the era of big data and online surveillance. Big Data, Surveillance, and the Digital Citizen I Acknowledgements I would first of all like to thank the School of Law at Queen’s University Belfast for the opportunity to study for a PhD and the Northern Ireland Department for the Economy for their financial support. I would like to thank as well my supervisors, Professor John Morison and Dr Billy Melo-Araujo, for their invaluable knowledge, comments, and guidance, without which this thesis would never have got anywhere. I’m grateful to Anthony Behan at IBM for his insightful comments on section of this thesis, as well as Professor Maurice Sunkin at the University of Essex for the opportunity to publish some of this thesis and an anonymous reviewer for their helpful comments on my analysis of the compatibility of Parts 3 and 4 of the Investigatory Powers Act with EU law. Finally, my thanks go to my parents for everything they have done for me and to the rest of my family and my friends for their unending support over a difficult few years. Methodology This thesis consists entirely of library-based research and a review of relevant literature, legislation, case law, and other relevant material up to November 1st 2017. Big Data, Surveillance, and the Digital Citizen II Contents Abstract I Acknowledgements II Methodology II Contents III 1. Introduction 1 1. The Internet Revolution 4 2. Big Data and Algorithmic Control 9 3. Surveillance and Power 16 4. Thesis Overview 24 2. Digital Engagement and the Contemporary State 27 1. Neo-liberal Concepts of the Citizen and the State 29 1. Central Themes of the Neo-liberal State 30 2. The Entrenchment of Neo-liberalism 35 3. Neo-liberal Government and the Individual 41 2. Conceptualising the State 45 1. Government and Power 45 2. Governmentality and the State 49 3. Digital Engagement in the Neo-Liberal Mould 53 Big Data, Surveillance, and the Digital Citizen III 1. Digitalisation and E-government 54 2. Active Digital Engagement 59 3. Digital Self-Management 64 4. Conclusion 72 3. Commodifying Life: Surveillance Capitalism and the Digital Citizen 75 1. The Reality Business 77 1. The New Surveillance Capitalism 77 2. From Datafication to Control 84 2. The Digital Citizen in Surveillance Capitalism 98 1. The Role of the Individual 100 2. The Appropriation of Consumer Sovereignty 111 3. Resisting Surveillance Capitalism 117 1. Ad-Blocking 118 2. The ‘Do Not Track’ Movement 121 4. Conclusion 123 4. The Digital Panopticon: State Surveillance in the Online World 126 1. The Digital Panopticon 128 1. Surveillance in Action 128 2. Constructing the Panopticon 138 2. The Digital Citizen in the Digital Panopticon 141 1. Eroding the Presumption of Innocence 144 2. Undermining Privacy and Freedom of Expression 150 3. Maintaining Order 155 4. Conclusion 158 Big Data, Surveillance, and the Digital Citizen IV 5. The Algorithmic Manipulation of Online Public Space 160 1. Voter Surveillance and Microtargeted Political Advertising 164 1. Microtargeting in Practice 166 2. Information, Knowledge, and Political Power 174 1. Informational Asymmetries 176 2. Transparency and Accountability 180 3. Contextualising Microtargeting 182 3. Conclusion 184 6. Privacy, Data Protection, and Online Surveillance 187 1. Privacy and Data Protection in Surveillance Capitalism 189 1. Challenging Existing Protections 189 2. Protecting Privacy 195 2. Data Protection and Voter Microtargeting 202 1. Microtargeting and the ePrivacy Regulation 203 2. Voter Surveillance and GDPR 205 3. The Legal Framework in Practice 216 3. Challenging the Digital Panopticon 219 1. Digital Rights Ireland and Watson 221 2. Communications Data Retention under IPA 223 3. Access to Communications Data 231 4. Locating the Investigatory Powers Act 236 4. Conclusion 237 Big Data, Surveillance, and the Digital Citizen V 7. Conclusions and Further Research 239 Bibliography 253 Cases 253 Legislation 254 Official Publications, Reports, etc. 255 Other 257 Big Data, Surveillance, and the Digital Citizen VI Chapter 1 | Introduction This thesis contends that the United Kingdom is emerging as a surveillance state, characterised by the ubiquitous use of data-producing ICT and the prevalence of internet-enabled surveillance, within which the digital citizen is amenable to various new forms of control based on online surveillance, primarily through social media, search, and other popular internet services but also encompassing data gathering from other sources, which overlap, interact, and together remake the individual’s relationship with society to their detriment. The ever-increasing use and importance of the internet within society means that its impact on the relationship between the digital citizen and society is a crucial topic for discussion in the contemporary world. As a result, there is a rich and critical literature on both the interface between technology and society1 and on surveillance which relies on ICT2, the internet3, and big data4. But no comprehensive analysis has yet been undertaken which looks at the role in the increasing impact of the internet on society of the particular forms and instances of surveillance-based control discussed in this thesis and which focuses on their interactions and points of overlap and on what they together mean for the digital citizen. Focusing primarily on the UK (with reference to other countries where relevant) and taking an interdisciplinary approach, drawing on concepts and resources from law, legal theory, political philosophy, surveillance studies, computer science, and from various social sciences, this thesis adopts a governmentality framework to identify, examine, and contextualise for the first time these forms of surveillance-based
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