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The Electronic Frontier Foundation and the Political Economy of the American Digital Rights Movement

Abstract: As one of the world’s most prominent (if not the most prominent) digital-rights group, and one with a reputation for principled stands, EFF’s views on digital-platform regulation have an outsized influence on policy options not only in the United States, but abroad. Systematically outlining EFF’s digital political economy thus helps to highlight how it defines the issue, and whose interests it promotes. To analyze the EFF’s economic ideology, this paper proposes a five- point framework for assessing the political economy of knowledge that draws on Susan Strange’s theories of structural power and the knowledge structure. It focuses on the control of key forms of knowledge, the role of the state and borders, and attitudes toward surveillance. The paper applies this framework primarily to four years (2015-2018) of EFF blog postings in its annual “Year in Review” series on its “Deeplinks” blog (www.eff.org/deeplinks), drawing out the specific themes and focuses of the organization, including the relative prevalence of economic versus non-economic (such as, for example, state surveillance) issues. The revealed ideology – favouring American-based self-regulation, individual responsibility for privacy, relative support for corporate surveillance, minimalist intellectual property protection, and free cross-border data flows – mirrors the interests of the large American internet platforms.

Blayne Haggart Associate Professor, Department of Political Science Brock University St. Catharines, Canada

Research Fellow Centre for Global Cooperation Research University of Duisburg-Essen Duisburg, Germany [email protected]

Paper presented at the annual International Studies Association Meeting, Toronto, ON, March 27-30, 2019

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Draft paper. Please do not cite without first contacting the author. 3

The Electronic Frontier Foundation and the Political Economy of the American Digital Rights Movement

Since the Facebook-Cambridge Analytica scandal exploded in early 2018 (Cadwalladr and Graham-Hudson 2018), the regulation of social media and the wider data-driven economy has shot to the top of policy agendas around the world. At stake are fundamental questions regarding corporate power and monopoly in the internet-based industries, free speech and the societally corrosive spread of dis- and mis-information, individuals’ rights to privacy, and who should control data – a key building block of the digital economy – and to what ends. That many of the largest internet companies (outside China) – Google, Amazon, Facebook, Microsoft and Apple – are quickly becoming critical infrastructure indispensable to modern life, and not just discrete online activities (Plantin and de Seta 2019, 2; Helmond 2015) renders even more urgent the debate over how best to regulate them.

In this debate, some organizations are more important than others. Among non-governmental organizations, few are potentially as important as the US-based Electronic Frontier Foundation. One of the oldest (established in 1990) digital-rights advocacy groups in the world, it claimed support in 2017 from “nearly 40,000 dues-paying members” and revenues of $US19,063,915 (Electronic Frontier Foundation 2017, 2, 25). It currently has 86 affiliate organizations around the United States1 and is active in Europe, as well as in key international/global organizations such as the Internet Governance Forum, the Internet Corporation for Assigned Names and Numbers (ICANN) and the Global Network Initiative.2 Over almost 30 years it has garnered a reputation for the forceful defence of civil liberties online, particularly in relation to government surveillance and against restrictive copyright and patent laws.3

However, as some commentators, notably former EFF employee and current Slate technology writer April Glaser, have remarked, the EFF and similar American digital-rights groups “have been jarringly quiet” regarding calls to regulate these platforms. In April 2018, Glaser reported:

I asked each of them if they have campaigns related to Facebook, or have proposals for any kind of legislation that would address the ways Facebook and other companies surveil and monetize your every move. Not one does—the most they’ve done is write blog posts and started initial conversations. … Compare this level of engagement with these issues to the media, which has treated the weeks since the Cambridge Analytica scandal broke as a public referendum on Facebook’s entire business model, or the growing outcry from academics who have long studied and warned of the deleterious effects of broad corporate data collection (Glaser 2018).

In a sense, why EFF and other groups remained silent is relatively obvious, if uncomfortable for digital-rights activists to accept. As Glaser remarks, the EFF and the American digital-rights movement has its origins “in libertarian and anti-regulation philosophies” that focuses more on constitutional rights instead of actual harms to the community. Furthermore, both Glaser and

1 https://www.eff.org/electronic-frontier-alliance/allies. Accessed February 26, 2019. 2 https://www.eff.org/issues/global-policy-venues. Accessed February 26, 2019. 3 Disclosure: The EFF named the author’s 2014 book, Copyfight: The Global Politics of Digital Copyright Reform a “must-read” of 2014 (Higgins 2014). 4 journalist Yasha Levine, writing in The Baffler, highlight EFF’s and others digital advocates’ financial dependency on Facebook and Google. In fiscal year 2017 EFF “took in about $822,000 from Google, including donations from employees that are matched by the company” (Glaser 2018; Levine 2018). Such funding is inherently problematic: O’Conner and Weatherall (2019, 119–20), citing philosophers of science Bennett Holman and Justin Bruner, argue that “the mere fact that certain scientists received industry funding can dramatically corrupt the scientific process” effectively by drawing in ideologically friendly researchers, and effectively excluding different points of view. Inaction, Levine and Glaser suggest, is in the interests of EFF’s funders, and so inaction results. Levine goes so far as to claim that “the truth is that EFF is a corporate front. It is America’s oldest and most influential internet business lobby—an organization that has played a pivotal role in shaping the commercial internet as we know it and, increasingly, hate it” (Levine 2018).

While these reasons may explain the “why” of EFF’s actions, it is also useful to consider the precise content and implications of EFF’s views on the governance of the digital economy in and of itself, rather than in terms of its effects on free speech, which is the way the EFF prefers to discuss these issues. As one of the world’s most prominent (if not the most prominent) digital- rights group, and one with a reputation for principled stands, its actions and inactions have an outsized influence on policy discussions not only in the United States, but abroad. Systematically outlining EFF’s conceptions of the digital political economy thus helps to highlight how it defines the issue, and whose interests it promotes.

To analyze the EFF’s economic ideology, this paper proposes a five-point framework for assessing how different groups and individuals approach the political economy of knowledge. It is focused on the control of key forms of knowledge, the role of the state and borders, and attitudes toward surveillance. It applies this framework primarily to four years (2015-2018) of EFF blog postings in its annual “Year in Review” series on its Deeplinks blog (www.eff.org/deeplinks), drawing out the specific themes and focuses of the organization, including the relative prevalence of economic versus non-economic (for example, state surveillance) issues. The revealed ideology – favouring American-based self-regulation, individual responsibility for privacy, relative support for corporate surveillance, minimalist intellectual property protection, and free cross-border data flows – mirrors the interests of the large American internet platforms, the “infrastructural arrangements that situate digital operability on proprietary systems that are, to some degree, programmable and/or customizable by the system users, making possible one- or multisided market exchanges” (Andersson Schwarz 2017). This paper also argues that EFF’s close relationship with the very companies it seeks to criticize fatally compromise its ability to act as a de facto regulator, suggesting a fatal flaw in the EFF’s view of a privacy-supporting digital economy regulated from within.

This paper is structured as followed. The first section, which draws on Susan Strange’s conception of structural power and the knowledge structure, and Robert W. Cox’s conception of the state-society complex, outlines the paper’s framework. The second presents an overview of the EFF’s “Deeplinks” blog and of its main topics. The third section applies the paper’s framework to the blog posts, while the fourth section considers offers an analysis of the EFF’s political economy, including its beneficiaries. It concludes with some final thoughts about the framework’s general applicability. 5

A. Analyzing the knowledge structure: Rise of the “info-imperium state”4

The current moment in the global political economy is characterized by the extent to which the control of knowledge has become central to the exercise of economic, social and political power. In the economic sphere, its importance can be seen in the emergence of commodified knowledge – in particular, intellectual property and data – as a dominant driver of economic value. Intangible assets, which includes intellectual property, “brand names, research and development, patents and other forms of abstract capital such as digital platforms and data flows” have overtaken “so-called fixed or tangible assets in the profitability and valuation of many leading corporations” (Bryan, Rafferty, and Wigan 2017, 56). By some measures, intangible assets, which include intellectual property, account for anywhere from 50% to 84% of the market value of the Standard and Poor’s 500 index (Monga 2016; Ocean Tomo, LLC 2015).

The rising political and economic importance of knowledge control has consequences for the relative power of social actors and economic sectors as well as for the nature of and ends to which this power is exerted. In the terminology of IPE scholar Susan Strange, who argued that control of four key “structures” – security, production, finance, and knowledge – are foundational to the exercise of power in a society (Strange 1994), the previous four decades have been characterized by the dominance of the financial structure. In this political economy, financial companies took on disproportionate influence in setting the overall economic agenda, and finance-focused governmental agencies and regulators took on relatively more importance than previously. Within these structures, actors exert what Strange referred to as “structural power” – the ability to set the rules and norms within which others operate. Importantly, the state does not hold a monopoly over structural power: either state or non-state actors (or both, to differing degrees) could exert power over financial rules or access to knowledge, for example. Understanding who exerts structural power, and to what end, is a central duty of an International Political Economy scholar.

Currently, we are witnessing the emerging dominance of the knowledge structure, in which the key actors are those who control the legitimation, creation, dissemination and use of knowledge (Haggart 2018, 2019a). In the private sector these include the big American tech companies (Apple, Amazon, Google, Facebook, and Microsoft), which are now among the most valuable companies in the world (Statista 2019), as well as smaller technology actors. These companies effectively are reversing previously existing power relations. As a businessperson at a clean-tech conference in Ottawa in 2018 remarked to the author, it used to be that a company that manufactured sensors for tractors, allowing farmers to monitor soil quality and the like, would have seen itself in terms of its manufactured product, the sensor. Now, however, the same company is likely to think of itself as a data-collection company that makes sensors: the real money is in the collection and use of data. A similar dynamic is playing out in finance. Tech companies that created the networks that allowed finance to globalize are themselves becoming financial institutions (Detrixhe 2017); companies like PayPal are now de facto global financial regulators (Tusikov 2016; Mickle, Hoffman, and Rudegeair 2019). Within the non-governmental world, NGOs and academics focused on technology issues become more prominent, while in

4 This section draws on Haggart (2019b, and 2018) 6 government, both industry regulators and information-processing organizations (such as intelligence agencies and statistical agencies) play key roles.

The rising importance of the knowledge structure signals a new form of politics, for which the late Canadian IPE scholar Robert W. Cox’s conception of the “state-society complex” (Cox 1987, 1996) offers a useful way to understand both the nature and dynamics of this change. For Cox, the state-society complex is the “basic entity of international relations.” There can be multiple types, or forms, of state-society complexes, “expressing different configurations of state/society complexes” (Cox 1987, 105). Cox argues that both the state and society are heterogeneous entities, meaning that forms of state involve coalitions between dominant parts of civil society – which may be national or transnational – and dominant parts of the state. In doing so, they reinforce each other’s power. State-society complexes, which Cox also refers to as forms of state, are constrained by particular, historically contingent relationships amongst the security, production, finance, and knowledge structures. For example, if the finance structure is dominant, that implies a different set of dominant actors and priorities than a situation in which the production structure is dominant.

Forms of state, and thus the power of the state, “ultimately rests” upon historically contingent configurations of social forces, which Cox refers to as historic blocs (Cox 1987, 106). An historic bloc consists of an alliance, or equilibrium, between dominant parts of civil society and parts of the state. Once established, the state gives priority to the dominant form of structural power; the state draws “resources from the society and uses these resources to maintain and reproduce the society” (Cox 1987, 106), for example, by pursuing policies and institutions that maintain the advantages of this part of society. These can include reinforcing the economic advantage of specific forms of production, or privileging security forces over other parts of civil society, as might happen to maintain a police state. If successful, the state-society complex can become hegemonic, naturalizing its position and making it harder for subordinate parts of state and society to assert their interests.

1. The info-imperium state problèmatique

The rising importance of the knowledge structure suggests that we are witnessing the emergence of a new form of state, the info-imperium state (Haggart 2018). While this form of state is characterized by an overarching focus on knowledge-governance issues, it does not imply the adoption of a monolithic, specific set of policies or outcomes. In other words, it does not eliminate politics, but rather focuses political contestation in a particular area and direction as different actors work to ensure that the emerging state-society complex reflects their ideas and interests. It implies a particular set of primary issues unique to that articulation of the knowledge structure.

An info-imperium state must respond to a knowledge structure’s specific problèmatique, or set of issues; how it does so will depend upon the particular constellation of state and non-state actors, and the position of the state and society in the wider global order. Evaluating different groups’ responses to these problèmatique thus offers us a guide to the nature of political and economic contestation in knowledge-structure-dominated political economy.

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The current problèmatique facing policymakers and societal actors consists of five primary issues, centred on the control of knowledge. We can use these to identify specific strategies privileging certain groups and policies over others. These are:

(1) Control of intellectual property and (2) data. The control of knowledge has always been an important contributor to physical security and economic prosperity. However, this control previously tended to be exerted passively, via the physical and spatial limitations of communicative media. The nature of digital communication has rendered these spatial limitations obsolete, necessitating control of knowledge via laws, regulations and norms (Balsillie 2017).

Data is the commodified form of observations of reality, with power accruing to those with the capacity to collect, store, analyze and interpret it. Intellectual property represents the hegemonic legal and normative framework for the commodification of ideas and concepts, with power similarly linked to the ability to define, control and use this knowledge. Data and IP are the building blocks of the knowledge-driven society. Intellectual property rules are important because they set the terms for future innovation, since it takes knowledge to make knowledge. Data, meanwhile, plays several key economic and security functions. It is, for example, the key input into machine-learning processes designed (it is hoped) to make production and social processes more efficient by training machine-learning algorithms.

Data and intellectual property can be subject to varying degrees of control, ranging from tight proprietary ownership/control through different forms of communal control (social data trusts, sovereign patent funds, Indigenous traditional knowledge) to being available to all to use (as when a patent or copyright enters the public domain). Understanding who defines and controls what data and IP, on what terms, and to what effects is a primary objective for analysts wishing to understand the info-imperium state.

(3) Nature and degree of surveillance. In an economy and society based on the commodification of intangibles, surveillance – “the focused, systematic, and routine attention to personal details for purposes of influence, management, protection or direction” (Lyon 2007), whether undertaken by public actors, private actors, or some hybrid arrangement – is unavoidable. Observation – surveillance – is the first step toward taking raw information about the world around us and turning it into knowledge, including its commodified forms.

Resistance to state – and corporate – surveillance involves not only reconsidering the nature of privacy in an age of surveillance (see, e.g., Igo 2018), but also more broadly thinking about “data justice” that relates to economic and social justice concerns in regards to surveillance (see Dencik, Hintz, and Cable 2016, 2; Taylor 2017).

One of the primary roles of an info-imperium state is to set limits on the surveillance that leads to the commodification of knowledge, for the same reasons that the state places limits on the economic exploitation of labour. Both labour and commodified knowledge are what Karl Polanyi referred to as “fictitious commodities, whose extreme market commodification, in the form of highly propertized intellectual property and data and slave labour, threaten the dignity and existence of human society itself (Polanyi 2001; see also Jessop 2007). Commodifying 8 knowledge, detaching it from the individuals or contexts that produced it, gives it an instrumental (often for-profit) characteristic, often placing it in a closed economic system and under the control of specific groups or individuals (Jessop 2007). It also makes it seem “natural,” reconfiguring and representing, in the case of data, “the flow of everyday life … in a form that enables its capture as data” and in a process that Couldry and Mejias refer to as “data colonialism,” which transforms “human life into a new abstracted social form that is also ripe for commodification: data” (2018, 4; emphasis in original). It does so in a way that presents itself in a way that is both natural and inevitable, even as it is the product of unequal social relations that benefit some groups over others (Thatcher, O’Sullivan, and Mahmoudi 2016).

(4) International treatment of intellectual property rights, data and the internet. This issue touches on the international/global exercise of power and control over the legitimation, creation, and dissemination of knowledge. Questions about whether data and intellectual property should be allowed to cross borders freely or be restricted for economic and/or social reasons fall under this category.

(5) Role of the state. The questions, who governs, and in whose interests, lie at the heart of the study of international political economy. One of the primary governing cleavages involves the contest for structural power between what Strange refers to as authority (the state) and the market (Strange 1994). The proper role of the state is a central issue in the contest for hegemony within the info-imperium state, on issues regarding the regulation of data and intellectual property, “fake news” and the general issue of internet governance.5

Taken together, these five central issues – control of data and IP, international regulation of knowledge, surveillance limitations, and the role of the state – provide us with a framework that we can use to evaluate the contested strategies pursued by actors favouring different forms/conceptions of the info-imperium state.

B. The Political Economy of the Electronic Frontier Foundation: Overview

This section is based primarily on an analysis of four years (2015-2018) of “Year in Review” posts on the EFF’s “Deeplinks” blog. Studying this four-year period allows us to compare the EFF’s “business as usual” period (2015-2016) with the years in which it became increasingly difficult to ignore deep structural problems with the online economy, culminating in the March 2018 Cambridge Analytica bombshells. The Deeplinks blog promotes EFF’s positions and relevant news. The Year in Review, beyond highlighting the organization’s perceived most important issues and actions over the previous year, also serves as a fundraising mechanism, with posts typically ending with a request for donations. As a result, the Year in Review Series offers an ideal self-description both of how the EFF as an organization sees itself, and of what it thinks potential donors will find appealing.

5 The internet governance debate is largely over the appropriateness of the current “multistakeholder” model and whether the internet should be subject to greater state oversight (Mueller 2010; for a critique of multistakeholder governance see Carr 2015; and Powers and Jablonski 2015; see also Winseck 2019; Mueller 2017; Malcolmson 2016; and Deibert et al. 2010). 9

Each year from 2015 and 2018, the EFF posted between 22 and 28 annual “Year in Review” articles, including an annual overview. To conduct this analysis, all non-overview posts were sorted according to whether they addressed “economic” or “non-economic” issues, or both. “Non-economic” issues were considered to be those addressed primarily or exclusively at the state, such as the 2018 post “The Long Fight to Stop Mass Surveillance” (Cohn and Crocker 2019). Economic issues were considered to be any that dealt with either the regulation of a company or economic sector, or with policies with a clear economic component, such as copyright or net neutrality. Table 1 breaks down the number of articles by number and general focus.

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Table 1: Economic and non-economic Year in Review posts, EFF Deeplinks blog, 2015-18 Year Total posts* Total non-economic posts Total economic posts 2018** 22 16 13 2017 22 16 8 2016 27 17 13 2015 21 14 10 Note: totals do not add up as several posts contained economic and non-economic elements. * Excludes overview posts. ** Excludes a post announcing EFF’s new logo. Source: https://www.eff.org/deeplinks/; author’s calculations.

Table 2, meanwhile, breaks down the economic posts that this paper uses to identify the EFF’s core political economy.

Table 2: Number of mentions, specific economic issues, EFF Year in Review Deeplinks blog, 2015- 18 Economic issue Year 2018 2017 2016 2015 Net neutrality 2 1 1 1 Copyright 2 3 6 4 Patents 2 1 1 2 Data privacy (from corporations) 7 1 1 2 Data security (hacking) 2 1 1 Control of data (sale without consent) 1 Corporate censorship 1 Shadow regulation 2 Digital currency regulation 1 1 Anti-competitive measures (anti- 1 scraping) Platform speech regulation 2 Online bot regulation 1 Market concentration 1 Note: Some posts address more than one issue. Source: https://www.eff.org/deeplinks/; author’s calculations.

Table 2 clearly highlights that throughout the period under investigation, EFF’s economic focus was primarily directed toward copyright and patent reform, and net neutrality, with copyright reform being the organization’s most focused-upon issue. While the table makes clear that data privacy has always been an issue for the EFF, it only emerged as the headline issue in 2018, after the Facebook-Cambridge Analytica scandal had come to light. Previously, it appears to have been a secondary issue: of the four data-privacy-related posts from 2015-2017, two were focused on Google’s targeting, tracking and data-mining of students (Okuda 2016; Gelman 2016); as will be discussed below, this focus fits with the EFF’s emphasis on individual consent to pervasive corporate surveillance.

Another post, in 2017, called out broadband providers’ violations of consumer privacy, even as the same practices practiced by platforms had already been subject to criticism for several years. In another post, EFF found it “disappointing” that Google and Facebook supported the Internet Service Providers’ position “despite the bill doing nothing about their core business models (the bill was explicitly about restoring ISP privacy rules)” (Falcon 2017). From the vantage point of 2019 and considering the amount of work that had already been done on the surveillance 11 capitalism model (van Dijck 2013; Van Dijck and Poell 2013; Lyon 2014), the inability to recognize the exact equivalence of business models – invading privacy is the Facebook and Google business model – is striking, to say the least.

The other non-2018 data-privacy reference, about the success of the EFF’s Privacy Badger personal tracking blocker, is also the only pre-2018 Year in Review post to treat violations of data privacy as a pervasive issue. This is not to say that the EFF does or did not consider pervasive surveillance to be a problem; rather that prior to 2018 it was not its main focus. More relevant than the question of issue ranking, however, is how the EFF approaches the issue, to which we will turn in the next section.

Market concentration is another issue that is now receiving much more attention from the EFF than in the past. A line from its 2018 post, “Wrangling with Monopolies,” suggests its previous relative indifference: "Market concentration and monopoly power in the online world have always shaped EFF’s work. This year, we’ve begun to tackle competition issues head-on" (Stoltz 2018). Now seen as a problem, the EFF previously treated the decade-old monopoly position of key companies (Google and Facebook, for example) as a fact of life, perhaps regrettable, but not as a central governance issue. For example, as the EFF remarked in a 2016 post titled “Censorship on Social Media,” “Today, companies like Facebook and Google have integrated their services across so much of the web that leaving isn’t so easy” (York 2016). Their plan of action: “As we move toward a new year, we will continue to monitor content takedowns … and keep you informed.”

C. The Political Economy of the Electric Frontier Foundation: Policy Positions

(1) Control of intellectual property

The EFF’s position on intellectual property rights is its clearest, and arguably the position for which it is most well-known. The EFF supports weak controls on the creation and use of knowledge covered by intellectual property rights. This position places it against those who own (or would like to own) economically valuable and socially important knowledge. These include the content industries’, such as the motion picture studios, book and software publishers, music labels on the copyright side, and chemical and brand-name pharmaceutical companies on the patent side. It favours those whose business and/or activities depend on access to information. These include universities, libraries, and emergent artists whose copyrights are not yet economically valuable. It also includes social-medial platforms and search engines, whose business involves accessing works produced by others.6

Overall, the EFF argues that copyright and patent law should be written and interpreted to ensure the fewest number of restrictions on how knowledge is used and by whom, justified by appeals to the need for freedom of expression.

6 Please note that these are assessments of general positions. Because it takes knowledge to create knowledge, anyone involved with knowledge is both a knowledge creator and user. They thus will have conflicting interests on these issues. However, they will also tend to have a dominant interest on one side or the other. 12

The EFF advocates for expansions to fair-use provisions in US copyright laws – that is, situations in which copyrighted works do not require permission for someone to use them – so as to ensure that “control of the right to copy and distribute doesn’t become control of the right to create and innovate” (McSherry 2019). Along these lines, limiting the use and protections afforded in US copyright law to Digital Rights Management (DRM) is a central goal (Doctorow 2017b, 2017a; Cohn and Rosenbloom 2018; Walsh 2016; Malcolm 2016b; Sheehan 2016; Sutton 2015; Higgins 2015). As the EFF points out, DRM – software and its attendant legal protections that prevent or restrict copying or modifying computer programs – can restrict an individual’s rights to use or do something that they would otherwise be able to do, making it “a literal felony to use their products in ways that they don't approve of -- including creative uses, repair, tinkering and security research. (There's an exemption process, but it's burdensome and inadequate to protect many otherwise legal activities)” (Doctorow 2017b).

EFF also favours “safe harbours” for internet platforms when it comes the actions of their users regarding copyright, and for speech in general:

Copyright safe harbor rules empower these platforms by ensuring that they are free to host user-uploaded content, without manually vetting it (or, worse, automatically filtering it) for possible copyright infringements. Without that legal protection, it would be impossible for such platforms to operate as they do today (Malcolm 2017b).

The EFF justifies these safe harbours in the name of free speech, arguing that without them, “fewer platforms willing to take the risk of hosting unmoderated speech of users,” resulting in “a very different Internet from the one we know—one in which it would be much harder for users to exercise their freedom of expression online” (Malcolm 2017b). Moreover, the EFF claims that these safe harbours “provide crucially important protections for users” (Sheehan 2016), on which more in the next section

Similarly, the EFF has been a consistent critic of “patent trolls and abusive patent owners” (Mullin 2018). Patent trolls – individuals and companies whose business model involves acquiring patents or coming up with overly broad ones, and then suing others for royalties – and the awarding of patents for “obvious uses or combinations of existing technology” (Maass 2015) hurt both new innovation and consumers, by increasing costs (Ranieri 2017). Since 2014, EFF has highlighted the problem of overly broad patents with a “Stupid Patent of the Month” award, along with a chair endowed software and tech entrepreneur Mark Cuban that is dedicated to “eliminating” stupid patents (Ranieri 2014).

(2) Data governance and (3) corporate surveillance

While the 2018 spike in year-end posts addressing data and privacy issues seen in Table 2 demonstrates that data governance has moved to the top of the EFF’s agenda, an examination of four years of these posts reveals a consistent perspective on data rights and corporate surveillance. In its posts, the EFF conflates two distinct types of privacy failures: policy failures, in which companies turn data over to governments without a warrant or collect and use data from unsuspecting or vulnerable individuals; and security/stupidity failures, in which poorly designed 13 systems lead to the exposure of sensitive data via hacking or as the result of human error (see, e.g., Gullo 2015).

In these posts, the EFF consistently argues that data should be controlled primarily by the individual whose consent is required to use their data. Consent is key: the two cases highlighted by EFF in the pre-2018 year-end posts – Google’s failure to disclose that the Chromebooks it provided to schools were tracking students (Gullo 2015; Okuda 2016), and Internet providers like Time-Warner “collecting and selling customers’ data without their consent” (Maass 2017; see also Trendacosta, Gillula, and Falcon 2018) – both highlight abuse of consent.

That said, Glaser’s comment that EFF was not paying that much attention to platforms’ generalized malfeasance (as opposed to Internet providers) is accurate. In previous years, much of the EFF’s data-privacy focus was on the state’s ability to access the enormous amount of data collected by the large platforms, as represented by their annual (since 2013) “Who Has Your Back” survey of companies on how they deal with government data requests7 (Gullo 2015; see also Cohn and Rosenbloom 2018 for an example from 2018). The change in focus, if not in recommendations, can be seen in these two comments from 2018:

The problem that came into focus in 2018 was not just hacks, breaches, or unauthorized bad guys breaking into systems. Instead, 2018’s worst privacy actors were the tech companies themselves, harvesting of mountains of users’ data and employing flawed systems to use and share it (Cyphers, Gebhart, and Schwartz 2018).

Of course, digital platforms’ indiscriminate harvesting of users’ data has been widely known, and criticized, for years (e.g., Lyon 2002; Schneier 2016).

Discussing a (since-repealed) move by the US Federal Communications Commission to restrict Internet providers’ collection and use of customers’ data without their consent, the EFF noted:

The rules—which prohibited things like selling your personal information to marketers, inserting undetectable tracking headers into your traffic, or recording your browsing history to build up a behavioral advertising profile on you without your consent—were a clear victory for privacy (Trendacosta, Gillula, and Falcon 2018).

That this has been the business model of companies like Facebook and Google for over a decade went unremarked upon in the story, even as it noted that Google and Facebook had come out against a California pro-privacy bill.

The EFF’s emphasis on individual control of data somewhat belies the implicit position that data is a fungible commodity that can be bought and sold, so long as individual consent is obtained and maintained. In other words, effect control of data can rest with either the individual or with a company. Moreover, the possibility that control over data should rest at the social level – for

7 See https://www.eff.org/who-has-your-back-2013?support_whyb=1&social=1. Accessed March 4, 2019. 14 example, in a state- or community-run data trust (Srnicek 2018) – is not entertained at all: it is the individual who rules.

Similarly, the question of when or whether ubiquitous corporate surveillance can be justified turns on the same issue of informed consent. Both the Google Chromebook and Internet provider data-collection cases turned on the lack of consent; presumably, had consent been obtained (or if the individuals in question were not minors and thus capable of providing consent), this corporate surveillance would not have been a problem.

The consequences of this position can be seen in the EFF’s position on the issue of targeted, or personalized, advertising. Although the ability to micro-target populations with tailored messages has been accused of fracturing society and leading the, among other things, Trump and Brexit (Iosifidis and Andrews 2019; Digital, Culture, Media and Sport Committee 2019), EFF has not come out against it. Instead, writing in April, as Facebook-Cambridge Analytica was revealing to the general public the potential problems with personalized advertising, the EFF was claiming that the main problem with it was that it is “creepy” and not as “magical” as it should be. That we are “being targeted highly accurately by machines based on private, behavioral information that we never actively gave out,” not that it is a socially destructive practice (Kelley 2018). The proposed solution? Not to ban personalized advertising, but to have “advertisers and platforms like Facebook … stop compiling data about users without their knowledge or explicit consent” (Kelley 2018).

From the EFF’s perspective, then, data is a commodity that is in the first instance controlled by the individual, who can cede this control to a company to do with it what it pleases, including personalized advertising, so long as the individual provides consent. Other possible forms of control, particularly by democratic, accountable governments or arm’s length institutions such as a Canadian-style Crown corporations, is not considered. Similarly, ubiquitous surveillance is only a problem in the absence of informed consent. The ability of an individual to provide consent is assumed, a point that will be discussed in the next section.

(4) International treatment of intellectual property rights, data and the internet

Although they are based in the United States, the dominant internet platforms have a global reach. As a result, they have to operate in multiple jurisdictions, subject to states’ domestic laws and various international treaties. As companies whose primary value and activities consist of the movement of data across borders, the free cross-border flow of data and knowledge in general is fundamental to ensuring their worldwide presence. Unrestricted cross-border data flows are a necessary contributor to market “concentration at a global level” (Ciuriak 2018b). That the internet-based economy is shaped by “powerful network externalities, which tend to create natural or near monopolies” and “near-frictionless commerce enabled by the internet and globalization” raises the problem of market concentration to a global level (Ciuriak 2018a). Free cross-border data flows is a necessary component of this dominance.

On the issue of internet governance, the EFF supports a free and open internet, including the free flow of information (including data of any type across borders) (Malcolm 2014). In a 2017 journal article, Jeremy Malcolm, the EFF’s then-Senior Foreign Policy Analyst, highlighted 15 differences between internet-focused civil society organizations (CSOs), such as the EFF, and CSOs focused on trade and development (Malcolm 2017a). Differences were “most pronounced where they concerned digital trade issues, such as network neutrality and data localization. For its part, EFF is strongly against data localization rules, arguing that “Pushing localization for short-term social, political and economic gains could ultimately harm users and innovators” (Panday 2017, cited in Malcolm 2017, 7). The EFF argues that while “weak cross-border data protection” is an issue, “data localization isn't a comprehensive solution to this problem, as it doesn't guarantee that data will be secure or adequately protect it against misuse. Pushing localization for short-term social, political and economic gains could ultimately harm users and innovators” (Panday 2017).

Similarly, EFF gives short shrift to economics-related data-localization rationales, including concerns about the global monopoly position of the US internet giants. Instead, it argues that “there is an inherent conflict between the logic of most data localization efforts and the policy objectives that countries pursue by participating in free trade agreements,” which have become a battleground for data localization (Panday 2017). Although the EFF phrases its opposition to data localization in this case with reference to the (questionable) economics of free trade as it relates to knowledge (on this point see Haggart 2019a), its primary objection is on free-speech grounds. The organization notes that “There is no agreement on where to draw the line between data protection-based restrictions on data flows that are protectionist and against trade and liberalisation, and those that are necessary to guarantee the rights of citizens,” and argues that the need for data localization would disappear if countries all had strong privacy protections (Panday 2017). Similarly, in a joint article, Malcolm and EFF’s Panday argue that “While restricting data flows is publicly justified as an economic strategy, such measures can also have political and social implications because they affect public opinion and power. In this larger context, whether data localization is enforced as a form of taxation, or to increase competition, or is viewed as a trade barrier may be a secondary consideration for the government imposing such measures” (Panday and Malcolm 2018, 519).

(5) Role of the state

Strange and Cox share the fundamental insight that the ability to exert structural power – that is, to shape the rules and norms in which other actors operate – can be wielded by both state and non-state actors. Power and authority can never be diminished; they are always exercised by someone, for some purpose. The question of who ruled (and the normative question of who should rule) was something to be investigated, not assumed.

One of Strange’s most important contributions to our understanding of political economy, arguably, is the clarity with which she frames the pursuit of power as a contest between authority (or the state) and the market (or private enterprise) (Strange 1994). This framework, meanwhile, offers us a clear way of assessing the fundamental question of who EFF believes should wield structural power.

Although it never frames it as such, in the contest between the state and the market, between government power and corporate power, the EFF is firmly on the side of corporate power, specifically that of internet platforms. Its preference is for corporate self-governance, constrained 16 by a competitive marketplace, informed and technologically empowered consumers, voluntary codes of conduct, and vigilant civil-society watchdogs like the EFF. The state’s role in its ideal world is limited primarily to ensuring the existence of competitive marketplaces through measures such as anti-trust laws. When EFF proposes voluntary guidelines and invokes the disciplining power of the marketplace, it identifies business as the de facto regulators, and individuals (as consumers, not citizens) as their supplicants.

EFF’s preference for corporate self-government, through best practices and voluntary guidelines, can be seen in the major campaigns it has pursued in recent years. Its “Do Not Track Policy,” “supported by a coalition of companies from the content creation, tracker blocking, and advertising tech industries,” offered a “combination of deterrent and reward provides an incentive for advertisers and data collection companies to respect a user’s choice not to be tracked online, and encourage[d] them to develop advertising technologies that do the same” (Quintin 2015).

As the Cambridge Analytica-Facebook debacle was gaining steam, the EFF played a central role in creating and promoting the “Santa Clara Principles On Transparency and Content Moderation,” “a set of minimum standards for tech companies to augment and strengthen their content moderation policies” (Electronic Frontier Foundation 2018). The Santa Clara Principles were released at the Content Moderation and Removal at Scale conference on May 7, a conference sponsored by, among others, the Charles Koch foundation, run by the “libertarian ideologue” and owner of “the second-largest private company” in the United States (Mayer 2018).8 Similarly, the EFF was involved in creating the “Manila Principles on Intermediary Liability,” which called on governments to shield intermediaries from third-party liability, and to ensure that any restrictions on content published on platforms be both necessary and proportional, subject to judicial authority, clear, unambiguous, and follow due process.9

The EFF’s position on state authority in the area of internet and platform regulation was also on display in its response to widespread, almost universal, calls for greater regulation of the internet platforms. On the subject of user-data privacy, EFF presents itself as greatly concerned about the potential negative effects of any new state legislation, commenting that “heavy-handed requirements, particularly requirements tied to specific kinds of technology (i.e. tech mandates) could stifle competition and innovation,” and that “we need to make sure that transparency and control provisions don’t undermine online speech.” “Above all,” EFF argues:

the guiding question should not be, "What legislation do we need to make sure there is never another Cambridge Analytica?" Rather, we should be asking, "What privacy protections are missing, and how can we fill that gap while respecting other important values? (McSherry 2018)

The strong resistance to meaningful state regulation of online platforms can also be seen in the EFF’s 2018 year-end review of the European Union’s General Data Protection Regulation. While acknowledging that it was encouraged by the fact that the GDPR’s existence was beginning to convince people to take data privacy seriously, the organization does not call for a

8 See http://comoatscale.com/#organizers. Accessed March 5, 2019. 9 See https://www.manilaprinciples.org/. Accessed March 5, 2019. 17 similar form of comprehensive legislation for the United States. The post ends with a “reminder that even the most well-intentioned laws can have unimagined consequences” (O’Brien 2018).

At the heart of this seemingly unobjectionable promotion of cautious legislation lies the assumption that current online speech conditions are themselves optimal. It also reflects a state- centric perspective that only governments regulate, and that the option is between no regulation and (probably suboptimal, in the EFF’s view) state regulation. In fact, as Strange would point out, the actual choice is between the present situation, in which speech, data-protection and innovation rules are set primarily in the private sector, and which themselves have led to the situation in which we find ourselves.

The EFF approach places significant importance on individual consumers both to protect their rights and to hold companies accountable. It created and runs Privacy Badger, “a browser extension that automatically blocks hidden trackers that would otherwise spy on your browsing habits as you surf the Web” (Quintin and Swartz 2015; Quintin 2015). Meanwhile, its privacy- law and voluntary-guideline recommendations are primarily focused on “empowering users and toolmakers” to exercise their rights in a competitive marketplace, including:

• the right to informed decision-making by the individual (i.e., consumer education); • the right to leave a platform, along with their data (data portability); • the right to legal redress, making “it easier for users to have their day in court”; and • allowing individuals and other companies to modify platforms, supported by transparent platforms (“Users should not have to take companies’ word on how data is being collected, stored, and used”) (Cyphers, Gebhart, and Schwartz 2018). Such individual activism, to the extent that it is possible, is reliant on the existence of a competitive market among large platforms that presently does not exist. While antitrust law has been floated as a possible remedy to this situation (Khan 2018; Rahman 2018; Wu 2018), that large platforms may in fact be natural monopolies complicates the viability of the EFF’s approach (Srnicek 2017b).

Finally, implicit in the EFF’s approach is a special, quasi-regulatory role for non-governmental organizations like EFF. This role involves raising public awareness, lobbying companies to change their behaviours, and working with companies and other groups to create voluntary guidelines.

D. Assumptions underlying, and beneficiaries of, the EFF’s political economy

The preceding analysis, summarized in Table 3, allows us to assess Levine’s (2018) charge, and Glaser’s (2018) suspicion, that the EFF effectively is a lobby group for American tech interests, particularly the dominant US platforms. In particular, it allows us to consider, to borrow again from Strange’s approach, who benefits from the EFF’s economic ideology.

Table 3: The political economy of the Electronic Frontier Foundation Issue EFF position Control over intellectual Minimalist control, emphasis on users’ rights at the expense of IP property ownership 18

Control over data Commodified data; individual data ownership; can be appropriated by companies if done with consent Surveillance Permissible if individual consent is obtained; restrictions on data sharing with governments; give power to individuals to deal with unwanted surveillance International treatment of Free and open cross-border flows of data, knowledge, IP; free and IPR, data and the internet open internet Role of the state Minimalist; overall general regulation; key regulator: the market; individuals (via technology and market power); civil society as quasi- regulator

In the EFF’s perfect world, intellectual property protections are weak, favouring users over IP owners. Personal data can be commodified, while constant surveillance and the appropriation of this data by profit-seeking companies is permissible so long as consumers provide full and informed consent. Internationally, the world is effectively one large marketplace, with few-to-no restrictions on data or IP flows. Corporations are largely self-regulating, held in check primarily by market competition, technologically empowered individuals (using, for example, the EFF’s Privacy Badger), and watchdogs like the EFF, and adhering to voluntary guidelines. The state is a regulator of last resort, responsible primarily for ensuring a competitive market, for example through net neutrality rules and anti-trust law.

Assumption 1: Perfect competition is a viable outcome

This view of the world depends on several unstated assumptions. The first assumption is that market competition among large platforms is either possible or desirable. While the EFF’s position on intellectual property would prevent the anti-competitive “information feudalism” (Drahos and Braithwaite 2002) that accompanies overly propertized knowledge regulation, platforms seem to have characteristics of natural monopolies, while the control of data may lead to “winner take most” stifling of economic competition (Ciuriak 2018a; see also Srnicek 2017a). Moreover, in the current moment, the dominant platforms are de facto monopolies or dominant market players in social media (Facebook), online advertising (Google, Facebook), search (Google), operating systems (Google, Apple), and online marketplaces (Amazon). In other words, we are a great distance from the EFF utopia.

The extent to which competition is actually possible in these areas is the difference between EFF’s ideology being practical or merely a delusional pipe dream. In the absence of strong government regulation or direction, holding companies in check depends crucially on the existence of consumer choice. The greater the market deviates from perfect competition, the less effective consumer power becomes. Situations outside of perfect competition places individuals/consumers in a position of supplicant to corporate power.

Even in cases of perfect competition, the EFF’s approach places much of the burden of holding companies in check on the individual. Their approach, a digital responsibilization (Shamir 2008; Garland 1996) that downloads regulatory responsibility onto the individual in the hope that they will have a baseline degree of technological savvy, and an understanding of all the issues at play with respect to their online activities, in order to protect their own privacy, garner the maximum value from their data, and hold multibillion-dollar global platforms to account.

19

Assumption 2: The individual consumer is the appropriate policy focus

The EFF’s approach also depends on the individual being the proper frame for considering issues of platform governance. This point can be challenged on several grounds, beyond technical competence. First, it assumes that the costs and benefits facing the individual making the decision, for example, to surrender her data in exchange for platform services, are the same as those facing society as a whole. In other words, it assumes that there the individual’s action in giving up her data does not create a negative externality. That an individual’s data on its own is relatively worthless compared to the benefits it creates for those organizations able to aggregate it (Seth 2018) makes this assumption problematic to hold.

Whether an individual is capable of giving full and informed consent for the use of her data can also be challenged from a few angles. First, if one’s personal data is used to affect the lives of others, as invariably happens when it is aggregated into large data sets used to train algorithms, then individual consent would not seem to be sufficient or appropriate for considering society- level issues (Taylor 2017). Similarly, thinking only in terms of individual ownership of data raises questions about situations in which data is produced through the interactions of individuals, as in the metadata about an online conversation: who should control that data? Several scholars have also shown that individuals do not understand companies’ privacy policies; while part of this lack of understanding is the result of the complex nature of most terms-of- service agreements, these findings also raise questions about the potential for technologically informed consumers to serve as effective advocates for their own interests (Obar and Oeldorf- Hirsch 2018; Bakos, Marotta-Wurgler, and Trossen 2014).

The adoption of an individualized and propertized frame, moreover, ignores the possibility that data could be controlled by the community itself, such as in the form of a data trust, and that it need not be propertized, but could be treated as a communal resource subject to non-market appropriation rules. It also implicitly accepts that for-profit companies are the most desirable means to deliver what are increasingly being seen as critical infrastructure (Powers and Jablonski 2015, 13), instead of as non-profits or publicly owned utilities (Srnicek 2017a; Rahman 2018).

Assumption 3: The free trade equivalence

In terms of international policy, EFF’s position against data localization rests on the assumption that cross-border data flows are unproblematically beneficial for sending and receiving countries. Challenging this assumption are those who argue that data, rather than a form of speech, is better appreciated as a value-creating natural resource that is extracted from countries by giant data- driven companies, based primarily in the United States in a form of “data colonialism” (Couldry and Mejias 2018). While the EFF argues that it is in favour of “innovation,” business groups in other countries, disagree that free cross-border data flows favour emerging companies. For example, the Council for Canadian Innovators (CCI), a Canadian lobby group consisting of small-and-medium-sized homegrown tech companies, has expressed concern about the control of data, not only for both privacy reasons, but in terms of control over data as an economic asset (Haggart 2019b). As Malcolm notes, “What e-commerce proposal proponents [such as EFF] call ‘localization barriers’ are actually the tools that countries use to ensure that they can benefit from 20 the presence of transnational corporations to advance their own development and the economic, social, and political rights of their citizens” (2017a, 7).

Assumption 4: State regulation is more bad than good; intertwining civil society organizations and industry does not create problematic conflicts of interest

The most important assumption underlying the EFF’s political economy is that state regulation, overall, causes more problems than it solves, and that society is best served by industry self- regulation. As already noted, this approach effectively cements industry as the de facto rule- setter, as the agents who exercise structural power, so it is worth thinking through how it relates to other actors in this scenario, particularly civil society.

In the presence of a curtailed state, it is up to civil society to provide the primary brake on tech companies, alongside consumers’ market power and limited state enforcement of a competitive marketplace. Civil society must, in other words, act as a form of industry regulator. To date, EFF has done so via activist campaigns, public awareness and the promotion of voluntary guidelines of the sort previously mentioned. Voluntary guidelines such as these have tended to be produced in conjunction with industry actors. Unsurprisingly, the two guidelines cited above are very long on encouraging self-regulation and short on recommending coercive external oversight.

If one approaches the EFF as a type of civil-society regulator rather than as an activist group, the issue of conflict of interest becomes clear. EFF’s taking of funds from the large internet platforms (for a discussion of EFF’s funding practices see Parloff 2012) further raises the issue that they are not working in the public interest, but rather in the interest of their funders. In February 2019, the perception of a conflict of interest was compounded when prominent EFF privacy lawyer Nate Cardozo, along with two other digital-rights lawyers, accepted a job with Facebook. This move raises the spectre of a “revolving door,” akin to ones it has criticized in other contexts (Scola 2014; Malcolm 2016a), between the EFF and the companies it says it wishes to hold to account. While these moves, which have gone largely unchallenged within the US digital-rights community, are in keeping with a general support for forms of governance such as multistakeholder governance, this view is not shared by, for example, trade and development activists, who, for example, “consider ICANN-level ‘equal footing’ multi-stakeholder inclusiveness to be a bridge too far, recognising the power differentials between stakeholders that can result in the capture of such processes (Malcolm 2017a, 7). When the EFF is recast as a form of regulator, the potential for conflicts of interest become even more stark.

Who benefits?

Despite the EFF’s reputation as an organization that is fiercely critical of the government, the extent to which the EFF’s political economy lines up with that of the US government is remarkable, particularly in the international sphere. Both the EFF and the US government support limited liability for internet platforms, a global internet and the free flow of information (data and IP), as included, for example, in the recently concluded United States-Canada-Mexico Agreement) (Laidlaw 2018). What’s more, they reflect a longstanding US economic interest in promoting the free flow of information worldwide in support of domestic US communications companies, to which platforms such as Google and Facebook are the natural heirs. Like the EFF, 21 successive US governments have framed this economic advocacy in the language of human rights, even as it cements global US dominance over communications (Powers and Jablonski 2015). The primary difference between the US government and EFF, over intellectual property rights, reflects the fact that the US government must reconcile the conflicting interests of its domestic IP-based industries and those of its platforms (Haggart and Jablonski 2017), while the EFF is free to focus solely on the interests of platforms themselves.

In terms of the EFF’s relationship with these platforms, while the organization is not merely a water carrier for US platform interests and does have substantive disagreements with the industry, on the whole it promotes policies that are remarkably friendly to its fundamental interests. While it argues against the unauthorized use of data by companies, it does not question the practice of commodifying this data – “the transformation of social action into online quantified data,” or “datafication” (van Dijck 2014, 198, citing Mayer-Schönenberger and Cukier 2013) – that forms the foundation of their business model. It does not challenge their use of the much-hated (Bannerman and Orasch 2019, 3) personalized advertising that provides platforms such as Google and Facebook with the revenues needed to dominate their spaces, and drives their need to collect as much data on as many people as possible (Jørgensen 2017). It accepts that for- profit companies should be responsible for mediating speech globally, while sheltering them from liability for the actions of their users, even though it is becoming increasingly clear that in many cases, users’ bad actions are being driven by their business models – as Vaidhyanathan (2018, 1) pithily but accurately asserts, “The problem with Facebook is Facebook.”

Although these platforms have become problematic under a regime of minimal government regulation of the type for which the EFF has advocated for decades, the EFF continues to argue that government regulation beyond better anti-trust legislation and enforcement will make things worse. In the contest for structural power, between state and market, it chooses the market, regulation by companies, to which individuals relate more as consumers than citizens, who, in the absence of perfect competition, are reduced to the role of supplicants to corporate power brokers. By sidestepping the state, the EFF also sidesteps the most potent way individuals can make claims against corporate power, as citizens with inherent rights to whom the state, in a liberal democracies like the United States and Canada, is directly accountable.

E. Conclusion

We are currently witnessing the emergence of a new form of state, the info-imperium state. As the world’s “leading nonprofit defending digital privacy, free speech, and innovation,”10 the Electronic Frontier Foundation has a significant voice in global debates over if and how internet platforms should be regulated, and in the ends to which info-imperium states will be directed. Consequently, it is important to understand the EFF’s political economy of platform/data/internet governance, since its views have a large say in shaping the limits of the possible in this area. Framing an analysis of the EFF in terms of how it views the exercise of structural power in what Strange calls the knowledge structure highlights the extent to which the organization, far from being a radical actor in economic terms, is largely supportive of the status quo. Its emphasis on individual instead of social or community responsibility, commodified data and datafication, and most importantly of industry self-regulation (voluntary agreements being a form of self-

10 https://www.eff.org. Accessed March 6, 2019. 22 regulation) against state regulation, far from being a universally valid position, tends to reflect the interests of dominant American technology actors.

These findings are not important because they necessarily represent an ‘incorrect’ approach to platform regulation: whether one finds the EFF’s position convincing will depend largely on one’s faith in the emergence of competitive markets, and whether such (at the moment hypothetical) markets can serve as an effective discipline on the giant internet platforms. Rather, the five-point framework elaborated here provides us with a way to evaluate and clarify competing claims regarding how the knowledge-driven economy should be regulated, highlighting the reality that we have several options when it comes to knowledge governance, each with their own tradeoffs, and creating their own winners and losers.

References

A. Electronic Frontier Foundation “Deeplinks” blog posts

Cohn, Cindy, and Michael Rosenbloom. 2018. “Big Wins for Privacy and Free Speech: 2018 in Review.” EFF Deeplinks (blog). December 21, 2018. Cyphers, Bennett, Gennie Gebhart, and Adam Schwartz. 2018. “Data Privacy Scandals and Public Policy Picking Up Speed: 2018 in Review.” EFF Deeplinks (blog). December 31, 2018. https://www.eff.org/deeplinks/2018/12/data-privacy-scandals-and-public-policy- picking-speed-2018-year-review. Doctorow, Cory. 2017a. “The Year We Went on Offense Against DRM: 2016 in Review.” EFF Deeplinks (blog). January 1, 2017. https://www.eff.org/deeplinks/2016/12/year-we-went- offense-against-drm-2016-review. ———. 2017b. “Seven Awful DRM Moments from the Year (and Two Bright Spots!): 2017 in Review.” EFF Deeplinks (blog). December 26, 2017. https://www.eff.org/deeplinks/2017/11/seven-awful-drm-moments-2017-and-two-bright- spots. Falcon, Ernesto. 2017. “How Silicon Valley’s Dirty Tricks Helped Stall Broadband Privacy in California.” EFF Deeplinks (blog). October 23, 2017. https://www.eff.org/deeplinks/2017/10/how-silicon-valleys-dirty-tricks-helped-stall- broadband-privacy-california. Gelman, Annelse. 2016. “Report From the Student Privacy Frontlines: 2015 in Review.” EFF Deeplinks (blog). January 3, 2016. https://www.eff.org/deeplinks/2015/12/report-student- privacy-frontlines-2015-review. Gullo, Karen. 2015. “Few Bright Spots, Lots of Dark Corners in Corporate Security Practices: 2015 in Review.” EFF Deeplinks (blog). December 30, 2015. https://www.eff.org/deeplinks/2015/12/few-bright-spots-lots-dark-corners-corporate- security-practices-2015-review. Higgins, Parker. 2014. “EFF’s Must-Reads and Must-Sees: Books and Movies of 2014.” EFF Deeplinks (blog). December 22, 2014. https://www.eff.org/deeplinks/2014/12/effs-must- reads-and-must-sees-books-and-movies-2014. ———. 2015. “Who’s Driving This Thing? Anti-DRM Victories and Milestones: 2015 in Review.” EFF Deeplinks (blog). December 27, 2015. 23

https://www.eff.org/deeplinks/2015/12/whos-driving-thing-anti-drm-victories-and- milestones-2015-review. Kelley, Jason. 2018. “We’re in the Uncanny Valley of Targeted Advertising.” EFF Deeplinks (blog). April 20, 2018. https://www.eff.org/deeplinks/2018/04/were-uncanny-valley- targeted-advertising. Maass, Dave. 2015. “Defending Prisoner Rights in the Digital World: 2015 in Review.” EFF Deeplinks (blog). December 28, 2015. https://www.eff.org/deeplinks/2015/12/defending- prisoner-rights-digital-world-2015-review. ———. 2017. “EFF Goes to Battle at the California Statehouse: 2017 in Review.” EFF Deeplinks (blog). December 26, 2017. https://www.eff.org/deeplinks/2017/12/eff-goes- battle-california-statehouse-year-review. Malcolm, Jeremy. 2014. “Net Neutrality and the Global Digital Divide.” EFF Deeplinks (blog). July 24, 2014. https://www.eff.org/deeplinks/2014/07/net-neutrality-and-global-digital- divide. ———. 2016a. “Promoting Transparency in Trade Act Would Bring Long-Needed Reforms to the USTR.” EFF Deeplinks (blog). September 27, 2016. https://www.eff.org/deeplinks/2016/09/promoting-transparency-trade-act-would-bring- long-needed-reforms-ustr. ———. 2016b. “Dark Skies for International Copyright: 2016 in Review.” EFF Deeplinks (blog). December 28, 2016. https://www.eff.org/deeplinks/2016/12/international- copyright-2016-review. ———. 2017a. “Contested Meanings of Inclusiveness, Accountability and Transparency in Trade Policymaking.” Internet Policy Review 6 (4): 1–18. https://doi.org/10.14763/2017.4.772. ———. 2017b. “Time to Rethink Copyright Safe Harbors? 2017 in Review.” EFF Deeplinks (blog). December 30, 2017. https://www.eff.org/deeplinks/2017/12/time-rethink- copyright-safe-harbors-2017-review. McSherry, Corynne. 2018. “Data Privacy Policy Must Empower Users and Innovation.” EFF Deeplinks (blog). April 4, 2018. https://www.eff.org/deeplinks/2018/04/smarter-privacy- rules-what-look-what-avoid. ———. 2019. “Fair Use Continued to Bear the Weight of Protecting Speech and Innovation: 2018 in Review.” EFF Deeplinks (blog). January 1, 2019. https://www.eff.org/deeplinks/2018/12/fair-use-continued-bear-weight-protecting- speech-and-innovation-2018-review. Mullin, Joe. 2018. “Patent Progress and Its Discontents: 2018 in Review.” EFF Deeplinks (blog). December 23, 2018. https://www.eff.org/deeplinks/2018/12/patent-progress-and-its- discontents-2018-review. O’Brien, Danny. 2018. “The Year of the GDPR: 2018’s Most Famous Privacy Regulation in Review.” EFF Deeplinks (blog). December 28, 2018. https://www.eff.org/deeplinks/2018/12/year-gdpr-2018s-most-famous-privacy- regulation-review. Okuda, Soraya. 2016. “Defending Student Data from Classrooms to the Cloud: 2016 in Review.” EFF Deeplinks (blog). December 23, 2016. https://www.eff.org/deeplinks/2016/12/effs- work-student-privacy. Panday, Jyoti. 2017. “Rising Demands for Data Localization a Response to Weak Data Protection Mechanisms.” EFF Deeplinks (blog). August 14, 2017. 24

https://www.eff.org/deeplinks/2017/08/rising-demands-data-localization-response-weak- data-protection-mechanisms. Quintin, Cooper. 2015. “Creepy Online Tracking Companies Fizzle in the Face of Privacy Badger: 2015 in Review.” EFF Deeplinks (blog). December 24, 2015. https://www.eff.org/deeplinks/2015/12/creepy-online-tracking-companies-fizzle-face- privacy-badger-2015-review. Quintin, Cooper, and Noah Swartz. 2015. “Privacy Badger 1.0 Is Here To Stop Online Tracking!” EFF Deeplinks (blog). August 6, 2015. https://www.eff.org/deeplinks/2015/08/privacy-badger-10-here-stop-online-tracking. Ranieri, Vera. 2014. “Introducing EFF’s Stupid Patent of the Month.” EFF Deeplinks (blog). July 31, 2014. https://www.eff.org/deeplinks/2014/07/inaugural-stupid-patent-month. ———. 2017. “New Places, New Faces in Patents: 2017 in Review.” EFF Deeplinks (blog). December 29, 2017. https://www.eff.org/deeplinks/2017/12/2017-patents-new-places- new-faces. Sheehan, Kerry. 2016. “Fighting for Fair Use and Safer Harbors: 2016 in Review.” EFF Deeplinks (blog). December 29, 2016. https://www.eff.org/deeplinks/2016/12/fighting- fair-use-and-safer-harbors. Stoltz, Mitch. 2018. “Wrangling with Monopolies: 2018 in Review.” EFF Deeplinks (blog). December 31, 2018. https://www.eff.org/deeplinks/2018/12/2018-review-wrangling- monopolies. Trendacosta, Katharine, Jeremy Gillula, and Ernesto Falcon. 2018. “Broadband Privacy: 2017 Year in Review.” EFF Deeplinks (blog). January 1, 2018. https://www.eff.org/deeplinks/2017/12/broadband-privacy-2017-year-review-0. Walsh, Kit. 2016. “DRM vs. Civil Liberties: 2016 in Review.” EFF Deeplinks (blog). December 27, 2016. https://www.eff.org/deeplinks/2016/12/drm-vs-civil-liberties-2016. York, Jillian C. 2016. “Censorship on Social Media: 2016 in Review.” EFF Deeplinks (blog). December 24, 2016. https://www.eff.org/deeplinks/2016/12/censorship-social-media- 2016-review.

B. General references

Andersson Schwarz, Jonas. 2017. “Platform Logic: An Interdisciplinary Approach to the Platform-Based Economy.” Policy & Internet 9 (4): 374–94. https://doi.org/10.1002/poi3.159. Electronic Frontier Foundation. 2017. “Annual Report 2017.” Electronic Frontier Foundation. https://www.eff.org/files/annual-report/2017/index.html. Bakos, Yannis, Florencia Marotta-Wurgler, and David R. Trossen. 2014. “Does Anyone Read the Fine Print? Consumer Attention to Standard-Form Contracts.” The Journal of Legal Studies 43 (1): 1–35. https://doi.org/10.1086/674424. Balsillie, Jim. 2017. In-person interview, electronic record. Bannerman, Sara, and Angela Orasch. 2019. “Privacy and Smart Cities: A Canadian Survey.” https://smartcityprivacy.ca/wp-content/uploads/2019/01/Bannerman-Orasch-Privacy-and- Smart-Cities-A-Canadian-Survey-v1-2019.pdf. Bryan, Dick, Michael Rafferty, and Duncan Wigan. 2017. “Capital Unchained: Finance, Intangible Assets and the Double Life of Capital in the Offshore World.” Review of 25

International Political Economy 24 (1): 56–86. https://doi.org/10.1080/09692290.2016.1262446. Cadwalladr, Carole, and Emma Graham-Hudson. 2018. “Revealed: 50 Million Facebook Profiles Harvested for Cambridge Analytica in Major Data Breach.” The Guardian, March 17, 2018. https://www.theguardian.com/news/2018/mar/17/cambridge-analytica-facebook- influence-us-election. Carr, Madeline. 2015. “Power Plays in Global Internet Governance.” Millennium: Journal of International Studies 43 (2): 640–59. https://doi.org/10.1177/0305829814562655. Ciuriak, Dan. 2018a. “Digital Trade: Is Data Treaty-Ready?” 162. Centre for International Governance Innovation. ———. 2018b. “From Digital Trade Wars to Governance Solutions: The G20 and the Digitally Enabled Economy.” International Centre for Trade and Sustainable Development (blog). August 28, 2018. https://www.ictsd.org/opinion/from-digital-trade-wars-to-governance- solutions-the-g20-and-the-digitally-enabled. Cohn, Cindy, and Andrew Crocker. 2019. “The Long Fight to Stop Mass Surveillance.” EFF Deeplinks (blog). January 1, 2019. https://www.eff.org/deeplinks/2018/12/long-fight- stop-mass-surveillance-2018-review. Cohn, Cindy, and Michael Rosenbloom. 2018. “Big Wins for Privacy and Free Speech: 2018 in Review.” EFF Deeplinks (blog). December 21, 2018. https://www.eff.org/deeplinks/2018/12/victories-2018-legal-wins. Couldry, Nick, and Ulises A. Mejias. 2018. “Data Colonialism: Rethinking Big Data’s Relation to the Contemporary Subject.” Television & New Media, September, 152747641879663. https://doi.org/10.1177/1527476418796632. Cox, Robert W. 1987. Production, Power, and World Order: Social Forces in the Making of History. New York: Columbia University Press. ———. 1996. “Social Forces, States, and World Orders: Beyond International Relations Theory.” In Approaches to World Order, by Robert W. Cox and Timothy J. Sinclair, 85– 122. Cambridge: Cambridge University Press. Cyphers, Bennett, Gennie Gebhart, and Adam Schwartz. 2018. “Data Privacy Scandals and Public Policy Picking Up Speed: 2018 in Review.” EFF Deeplinks (blog). December 31, 2018. https://www.eff.org/deeplinks/2018/12/data-privacy-scandals-and-public-policy- picking-speed-2018-year-review. Deibert, Ronald, John Palfrey, Rafal Rohozinski, and Jonathan Zittrain. 2010. Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace. Cambridge, MA: MIT Press. Dencik, Lina, Arne Hintz, and Jonathan Cable. 2016. “Towards Data Justice? The Ambiguity of Anti-Surveillance Resistance in Political Activism.” Big Data & Society 3 (2): 1–12. https://doi.org/10.1177/2053951716679678. Detrixhe, John. 2017. “Big Tech Firms like Amazon Are Eager to Eat the Banking Industry’s Lunch.” Quartz, October 26, 2017. https://qz.com/1112460/banks-are-under-threat-from- big-tech-firms-like-apple-amazon-and-facebook-according-to-mckinsey/. Digital, Culture, Media and Sport Committee. 2019. “Disinformation and ‘Fake News’: Final Report.” Parliamentary Committee Report. London, UK: House of Commons (United Kingdom). Drahos, Peter, and John Braithwaite. 2002. Information Feudalism: Who Owns the Knowledge Economy? London: Earthscan Publishing. 26

Electronic Frontier Foundation. 2018. “EFF and Coalition Partners Push Tech Companies To Be More Transparent and Accountable About Censoring User Content.” Electronic Frontier Foundation. https://www.eff.org/press/releases/eff-and-coalition-partners-push-tech- companies-be-more-transparent-and-accountable. Falcon, Ernesto. 2017. “How Silicon Valley’s Dirty Tricks Helped Stall Broadband Privacy in California.” EFF Deeplinks (blog). October 23, 2017. https://www.eff.org/deeplinks/2017/10/how-silicon-valleys-dirty-tricks-helped-stall- broadband-privacy-california. Garland, D. 1996. “The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society.” British Journal of Criminology 36 (4): 445–71. https://doi.org/10.1093/oxfordjournals.bjc.a014105. Glaser, April. 2018. “The Watchdogs That Didn’t Bark.” Slate, April 19, 2018. https://slate.com/technology/2018/04/why-arent-privacy-groups-fighting-to-regulate- facebook.html. Haggart, Blayne. 2018. “New Economic Models, New Forms of State: The Emergence of the ‘Info-Imperium’ State.” In Kritika: Essays on Intellectual Property, by Hanns Ullrich, Peter Drahos, and Gustavo Ghidini, 159–88. Edward Elgar Publishing. https://doi.org/10.4337/9781788971164.00014. ———. 2019a. “Taking Knowledge Seriously: Toward an International Political Economy Theory of Knowledge Governance.” In Technology and Control in a Changing World: Understanding Power Structures in the 21st Century, edited by Blayne Haggart, Kathryn Henne, and Natasha Tusikov. New York: Palgrave-Macmillan. ———. 2019b. “‘Our Trading Partners May Call It Protectionism’: The New Global Political Economy of Knowledge.” In . Toronto, ON. Haggart, Blayne, and Michael Jablonski. 2017. “Contradictory Hypocrisy or Complementary Policies?: The Internet Freedom Initiative, US Copyright Maximalism and the Exercise of US Structural Power in the Digital Age.” The Information Society 33 (3): 1–16. Helmond, Anne. 2015. “The Platformization of the Web: Making Web Data Platform Ready.” Social Media + Society 1 (2): 1–11. https://doi.org/10.1177/2056305115603080. Igo, Sarah E. 2018. The Known Citizen: A History of Privacy in Modern America. Cambridge, MA: Harvard University Press. Iosifidis, Petros, and Leighton Andrews. 2019. “Regulating the Internet Intermediaries in a Post- Truth World: Beyond Media Policy?” International Communication Gazette, February, 1–20. https://doi.org/10.1177/1748048519828595. Jessop, Bob. 2007. “Knowledge as a Fictitious Commodity: Insights and Limits of a Polanyian Analysis.” In Reading Karl Polanyi for the Twenty-First Century, edited by Ava Buğra and Kaan Ağartan, 115–34. Basingstoke, UK: Palgrave. Jørgensen, Rikke Frank. 2017. “What Platforms Mean When They Talk About Human Rights: Platforms and Human Rights.” Policy & Internet 9 (3): 280–96. https://doi.org/10.1002/poi3.152. Khan, Lina M. 2018. “Sources of Tech Platform Power.” Georgetown Law Technology Review 2 (2): 334–51. Laidlaw, Emily. 2018. “New trade deal shields internet companies from liabilities.” Calgary Herald, October 15, 2018. https://calgaryherald.com/opinion/columnists/column-new- trade-deal-shields-internet-companies-from-liabilities. 27

Levine, Yasha. 2018. “All EFF’d Up.” The Baffler, July 2018, 40 edition. https://thebaffler.com/salvos/all-effd-up-levine. Lyon, David. 2002. “Surveillance in Cyberspace: The Internet, Personal Data, and Social Control.” Queen’s Quarterly 109 (3): 345–56. ———. 2007. Surveillance Studies: An Overview. Cambridge, UK: Polity. ———. 2014. “Surveillance, Snowden, and Big Data: Capacities, Consequences, Critique.” Big Data & Society 1 (2): 205395171454186. https://doi.org/10.1177/2053951714541861. Malcolmson, Scott. 2016. Splinternet: How Geopolitics and Commerce Are Fragmenting the World Wide Web. New York: OR Books. Mayer, Jane. 2018. “One Koch Brother Forces the Other Out of the Family Business.” The New Yorker, June 7, 2018. https://www.newyorker.com/news/news-desk/the-meaning-of-a- koch-brothers-retirement. Mayer-Schönenberger, Viktor, and Kenneth Cukier. 2013. Big Data. A Revolution That Will Transform How We Live, Work, and Think. London: John Murray Publishers. Mickle, Tripp, Liz Hoffman, and Peter Rudegeair. 2019. “Apple, Goldman Sachs Team Up on Credit Card Paired With iPhone.” Wall Street Journal, February 21, 2019. https://www.wsj.com/articles/apple-goldman-sachs-team-up-on-credit-card-paired-with- iphone-11550750400. Monga, Vipal. 2016. “Accounting’s 21st Century Challenge: How to Value Intangible Assets.” Wall Street Journal, March 21, 2016. https://www.wsj.com/articles/accountings-21st- century-challenge-how-to-value-intangible-assets-1458605126. Mueller, Milton. 2010. Networks and States: The Global Politics of Internet Governance. Cambridge, MA: MIT Press. ———. 2017. Will the Internet Fragment? Sovereignty, Globalization, and Cyberspace. Cambridge, UK: Polity. Obar, Jonathan A., and Anne Oeldorf-Hirsch. 2018. “The Biggest Lie on the Internet: Ignoring the Privacy Policies and Terms of Service Policies of Social Networking Services.” Information, Communication & Society, July, 1–20. https://doi.org/10.1080/1369118X.2018.1486870. Ocean Tomo, LLC. 2015. “Annual Study of Intangible Asset Market Value.” Ocean Tomo, LLC. www.oceantomo.com/2015/03/04/2015-intangible-asset-market-value-study. O’Connor, Cailin, and James Owen Weatherall. 2019. The Misinformation Age: How False Beliefs Spread. New Haven, CT: Yale University Press. Panday, Jyoti, and Jeremy Malcolm. 2018. “The Political Economy of Data Localization.” PArtecipazione e COnflitto: The Open Journal of Sociopolitical Studies 11 (2): 511–27. Parloff, Roger. 2012. “Google and Facebook’s New Tactic in the Tech Wars.” Fortune, July 30, 2012. http://fortune.com/2012/07/30/google-and-facebooks-new-tactic-in-the-tech-wars/. Plantin, Jean-Christophe, and Gabriele de Seta. 2019. “WeChat as Infrastructure: The Techno- Nationalist Shaping of Chinese Digital Platforms.” Chinese Journal of Communication, February, 1–17. https://doi.org/10.1080/17544750.2019.1572633. Polanyi, Karl. 2001. The Great Transformation: The Political and Economic Origins of Our Time. Boston: Beacon Press. Powers, Shawn M., and Michael Jablonski. 2015. The Real Cyber War: The Political Economy of Internet Freedom. Chicago: University of Illinois Press. Rahman, K. Sabeel. 2018. “Regulating Informational Infrastructure: Internet Platforms as the New Public Utilities.” Georgetown Law Technology Review 2 (2): 334–51. 28

Schneier, Bruce. 2016. Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World. First published as a Norton paperback. New York London: W.W. Norton & Company. Scola, Nancy. 2014. “White House Names Google’s Megan Smith the next Chief Technology Officer of the United States.” Washington Post, September 4, 2014. https://www.washingtonpost.com/news/the-switch/wp/2014/09/04/white-house-names- googles-megan-smith-the-next-chief-technology-officer-of-the-united- states/?utm_term=.8b082c8c076f. Seth, Shobhit. 2018. “How Much Can Facebook Potentially Make from Selling Your Data?” Investopedia, April 11, 2018. https://www.investopedia.com/tech/how-much-can- facebook-potentially-make-selling-your-data/. Shamir, Ronen. 2008. “The Age of Responsibilization: On Market-Embedded Morality.” Economy and Society 37 (1): 1–19. https://doi.org/10.1080/03085140701760833. Srnicek, Nick. 2017a. Platform Capitalism. Cambridge: Polity. ———. 2017b. “We Need to Nationalise Google, Facebook and Amazon. Here’s Why.” The Guardian, August 30, 2017. https://www.theguardian.com/commentisfree/2017/aug/30/nationalise-google-facebook- amazon-data-monopoly-platform-public-interest. ———. 2018. “The Social Wealth Fund: The Social Wealth of Data.” Autonomy, no. 3 (June): 2–4. Strange, Susan. 1994. States and Markets. 2nd ed. New York: Continuum. Sutton, Maria. 2015. “We Threw a Wrench in the White House’s TPP Fast Track Plan: 2015 in Review.” EFF Deeplinks (blog). December 24, 2015. https://www.eff.org/deeplinks/2015/12/we-put-wrench-white-houses-tpp-fast-track-plan- 2015-review. Taylor, Linnet. 2017. “What Is Data Justice? The Case for Connecting Digital Rights and Freedoms Globally.” Big Data & Society 4 (2): 1-14. https://doi.org/10.1177/2053951717736335. Thatcher, Jim, David O’Sullivan, and Dillon Mahmoudi. 2016. “Data Colonialism through Accumulation by Dispossession: New Metaphors for Daily Data.” Environment and Planning D: Society and Space 34 (6): 990–1006. https://doi.org/10.1177/0263775816633195. Statista. 2019. “The 100 Largest Companies in the World by Market Value in 2018 (in Billion U.S. Dollars).” Statista.Com. 2019. https://www.statista.com/statistics/263264/top- companies-in-the-world-by-market-value/. Tusikov, Natasha. 2016. Chokeponts: Global Private Regulation on the Internet. Berkeley: University of California Press. Vaidhyanathan, Siva. 2018. Antisocial Media: How Facebook Disconnects Us and Undermines Democracy. Oxford: Oxford University Press. van Dijck, José. 2014. “Datafication, Dataism and Dataveillance: Big Data between Scientific Paradigm and Ideology.” Surveillance and Society 12 (2): 197–208. ———. 2013. The Culture of Connectivity: A Critical History of Social Media. Oxford: Oxford University Press. Van Dijck, José, and Thomas Poell. 2013. “Understanding Social Media Logic.” Media and Communication 1 (1): 2. https://doi.org/10.17645/mac.v1i1.70. 29

Winseck, Dwayne. 2019. “Internet Infrastructure and the Persistent Myth of U.S. Hegemony.” In Taking Knowledge Seriously: Toward an International Political Economy Theory of Knowledge Governance, edited by Blayne Haggart, Kathryn Henne, and Natasha Tusikov. New York: Palgrave-Macmillan. Wu, Tim. 2018. The Curse of Bigness: Antitrust in the New Gilded Age. New York: Columbia Global Reports.