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Europe urged to dam Google Fitbit from a serious overhaul of digital coverage

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The European Commission has to block Google -Fitbit-Fusion as a question of the democratic imperative, warned prominent scholar and author Shoshana Zuboff.

The Harvard professor, who wrote the defining book on surveillance capitalism, is the latest voice to be raised against the $ 2.1 billion data + device deal – this has now increased in the regulatory approval phase delayed than a year.

Others are calling for the Google Fitbit Acquisitions to be blocked – unless or until robust competition, democratic and human rights guarantees can be put in place – belong to Amnesty International; Dozens of consumer, privacy and digital rights groups across civil society; and the EU's own data protection advisor, to name a few.

The EU regulators are currently considering whether or not to establish the merger. The deadline for their decision was recently extended to early 2021 – although a decision could be made as early as next week.

The commission launched an in-depth investigation into the deal back in August. She feared that it would "further consolidate Google's position in the online advertising markets by increasing the already large amount of data that Google could use to personalize the ads it serves and shows".

EU lawmakers have also expressed skepticism about the initial concessions offered by Google, according to which it proposed storing Fitbit data in a silo that should remain separate from other Google data.

It was also announced that it would not use Fitbit data for ad targeting – at least for a limited time (although it is not clear what exactly is being proposed in Europe). Australian regulators are also still watching the deal – and recently sought industry feedback on a commitment from Google not to use Fitbit data for ads for ten years.

The ACCC published draft commitments in November containing provisions such as: "Google may not use measured body data or health and fitness activity data in or for Google Ads. These data must be kept separately.

Zuboff's argument, however, is that targeted advertising is just the tip of the surveillance capitalists' great ambitions to extract data – while health data is one of the few personal data fields these digital giants have not yet been able to mine in their usual limitless ways.

"Any thought of approving the acquisition of Fitbit – based on Google's promise not to do anything irrelevant, to do or not to do – is a grave mistake," she said yesterday, delivering the keynote address at the annual lecture by the STOA (Science and Technology Options Assessment) committee of the EU Parliament.

“Such a decision should be reconsidered immediately. And never repeat it again, ”she added.

A Google spokesman declined to comment on Zuboff's remarks. He only referred to his August blog post claiming the deal was "devices, not data."

Beware of the "epistemic coup"

In the STOA lecture, Zuboff articulates a look at the uncontrolled extraction and use of data by technology giants leading to what she calls an "epistemic coup" – in which bottomless digitally activated data extraction leads to an unprecedented dominance of knowledge by the private sector . This leads to radical inequalities and damage across the spectrum as few data-enabled individuals are able to disregard humanity, democratic values ​​and the rule of law in the name of increasing their profits.

“There is no such thing as an 'attention economy'; These are effects of a deeper cause – and that cause are the economic imperatives of surveillance capitalism. These companies aren't publishers, they're not distributors, they're not just adtech providers. They are indiscriminate, radically indifferent, all-you-can-eat extractors of everything forever, all for predictive purposes, that get more lucrative as they get closer to certainty, ”she said.

“Knowledge of this magnitude creates a new kind of power over people. This is what data scientists call the shift from surveillance to activity. Where there is actually enough data about a machine system to be able to control it remotely. Now it's not just about the machine systems. it is the human systems. "

The far-reaching keynote is well worth seeing, as Zuboff clearly expresses why it is terrible for mankind to allow companies to “unilaterally (…) claim private human experience for raw materials that are based on the purposes of data collection, computer-aided Production and sales are aligned “The (real) communities that make up our civilization compare them to how the uncontrolled extraction of oil for corporate profits threatens the survival of life on earth and climate change, biodiversity decline and that Has fueled mass species extinction.

The core of the argument is that surveillance capitalism's goal is human nature itself – Zuboff calls out the "data business" game book of "hidden extraction mechanisms" which she said rob us of the ability to fight back.

“Today, our nemesis is and will remain not just data or technology, but rather the extractors run by a handful of huge companies: Google, Facebook, Apple, Amazon, Microsoft, to name but a few, along with their complex of extensive ecosystems are corporate institutions that have developed a new logic of extraction, but with a dark and surprising twist. These corporations have put the defense of their narrow economic self-interest above the interests of individual sovereignty, democracy and humanity themselves. ”

The keynote included a call to European lawmakers to intervene and reverse what was allowed to be anchored at the expense of humanity.

“I am here today because the European Union is humankind's best hope to change that course before lawless, unprecedented computational concentrations of knowledge and power become as irreversible and toxic to our societies as the toxic levels of carbon dioxide in our atmosphere are to our earth "Said Zuboff, adding," The idea that we could leave these two cataclysms on our children is unbearable. "

The EU legislator is about to publish a comprehensive package of legislative proposals to update the rules for digital services and introduce new requirements for platforms with significant market power.

The proposals of the Digital Services Act (DSA) and the Digital Markets Act (DMA) are due to be presented to the Commission next Tuesday – the beginning of a long negotiation path to implement the policy in EU law.

At the same time as Google-Fitbit's decision, it turned out that this was a particularly uncomfortable time for the Commission. Not least because Margrethe Vestager, an important EPP who was involved in shaping the new digital strategy, is also the competition commissioner – so she has to decide at the same time whether to dispense with the latest data collection from the tech giant, even if she finalizes the ex-ante rules for gatekeepers, which are unlikely to come into effect for years.

Vestager informed the EU Parliament's Economic and Monetary Committee this week that the Commission's incoming proposals are needed for a major overhaul of digital rules to address the challenges of the platform economy.

The scale and scope of the platform economy are "unprecedented and growing," she said, admitting that the digitization process "has given us a concentration of data, intellectual property and capital – and that is why there is a lot of power in the platform." Hands of some global players ”.

This, in turn, makes it "really urgent" to supplement existing EU competition laws for law enforcement with specific rules for digital services and platform giants, Vestager said.

“The DSA will propose a set of clear due diligence obligations and operate the e-commerce framework for all internet services in the EU. The aim is to ensure that digital services within the EU have no borders, clearer responsibilities and responsibilities for online platforms such as social media and marketplaces, ”she told MEPs. The overall goal is to ensure that consumers have the same protection online as they do offline.

The goal of the DMA – and its in-depth list of “dos and don'ts” for platforms that the EU will define as a gatekeeper – is to ensure that digital markets “remain open and contestable” and thus “open to consumers”. the best “offer a possible way”.

"Trust but check" via the audit authority

In her keynote address, Zuboff suggested that EU regulators should follow two basic principles when considering what to do.

First, “trust, but verify” is how surveillance capitalists are dealt with – therefore, no more “at face value” commitments were naively swallowed and later broken again under the one-way logic of extraction maximization. (She cited the nasty example of Facebook reversing a previous pledge to EU regulators not to combine WhatsApp user data with Facebook data.)

Second, so often we have to consider that we are reducing the damage to the original context of targeted advertising – although this whole economic logic has gone well beyond targeted advertising in many other markets, "she also cautioned before EU regulators take too narrow a view to all the concessions that Google has made to open another data gateway.

We asked the Commission to comment on Zuboff's comments.

Zuboff also raised concerns that EU regulators don't believe they have any legal reason to turn down Google Fitbit.

“If the decision to authorize the acquisition of Fitbit by Google was made because it was determined that EU law was not strong enough to defend the denial of the acquisition in the European courts, please let us stop this minute talk. Let's put our event on hold while Parliament goes into an emergency session to pass new laws strong enough to bring this type of rejection to justice. Because we need these laws, ”she said.

It would surely be ironic if the Commission gave the go-ahead to the merger of Google and Fitbit for fear of losing a legal challenge across the board – given the frequency with which tech giants are taking legal action to stop the application of existing EU Thwart regulations. Not to mention how fiercely these giants oppose any new regulations or legislative proposals that would dare to limit their ability to further maximize their data extraction.

Zuboff said the upcoming DMA was "the legal tool to get this necessary legislation (against the surveillance capitalists)" and addressed her remarks to those in the EU with the power to legislate.

Make no mistake: this is your opportunity to take a bold intervention in defense of democracy against the surveillance capitalists. Weak warmth is not an option, ”she said, adding the DSA is also an essential intervention in Defend Democracy.

"This is your chance to finally open the black box of surveillance capitalism and demand the right of democratic societies to control their own destiny," she said, suggesting that the regulators' catchphrase here should be "auditor".

Democracy needs scrutiny to protect the public, as regulators have done in countless other industries, she added.

The acquisition of Google Fitbit was raised yesterday at a meeting of the Committee on Business and Money on a question for Vestager. There she was asked what the EU is up to, given the technology risk to health data and competition giants, who are gaining far deeper and more familiar knowledge of users than has been possible with current data mining practices.

Vestager told the committee that she was unable to comment on the specific transaction during the ongoing process, but agreed that health data was "much more valuable and sensitive" than other types of commercial data.

"So you have to be very careful with health data and advertising – this can be a much more vulnerable position for the person," she said.

"For health data as such, I think it is very important that the market evolves because the more health data becomes available, the more services people expect from the market to better understand how their health is doing," she continued and Google Fitbit specifically added that "it remains to be seen how the funds will work out if they are accepted".

Antitrust law between the USA and the EU

During the session, Vestager also faced a number of questions from MPs about the different antitrust approaches between the EU and the US – where states have just opened massive antitrust proceedings against Facebook.

She repeatedly stressed that Europe has a "different" approach to competition law compared to the US, which sounds a bit defensive.

“The US Facebook case is a different approach than the one we have. There is no monopoly ban in Europe. They have a different legal basis in the USA. We'd say you're more than welcome to be successful, but with success comes responsibility. That is why we have Article 102 (against abuse of a dominant position), ”she said.

"As a last resort in Europe we could also ask our (institutions) to split companies, but then we would also have to prove that this is the only thing to solve a competition problem, and I don't think we were there yet", added Vestager.

To other questions from MPs, she replied that her department had "done its best" on a series of large technical investigations. She pointed out that this is a recent case against Amazon and that others are investigating Google and Facebook's use of data for advertising purposes.

"We have some ongoing research into the Facebook ecosystem – how customers and consumers use data for advertising and how the Facebook marketplace works," she noted.

"These cases are not as advanced as they are in the US on Facebook, but I find (the US action) very encouraging," she added, saying this was a sign that the global debate on the technical is moving Dominance over the US has shifted last couple of years ".

When asked whether Facebook reversed a previous promise not to combine Facebook and WhatsApp user data, Vestager said EU regulators had carried out an analysis at the time to see if such a move would still allow competition and "stated that there would be room for other services of the same kind".

There were no follow-up questions in the event format, so MEPs could not ask whether Vestager felt the analysis was solid or flawed. It doesn't look good, however, that the EU competition authorities have misjudged Facebook's market power.

Vestager merely said: “It remains to be seen how the US case (Facebook antitrust law) will play out. Like I said, they have a different legal basis – to see if you have a solid monopoly by acquiring this company. "

She was also asked what the Commission intends to do about companies that use selfish tactics to artificially prolong investigations (and thus delay the enforcement of competition) – for example, by delaying or distributing requested information.

Vestager said his approach was "always to try to balance things," but she argued it was important to give companies enough time to respond properly, although this will add length to the investigation.

During the session, she also noted that the DMA's goal is to enable competition authorities to be "that much faster" – because the ex ante rules include "self-executing obligations".

Gatekeeper status also means that regulators don't have to first establish dominance – "That means you need to get to the sanction faster and prevent damage in the market, ”she noted.

It is not clear whether the upcoming legislative package will contain a new competitive tool to target digital markets, on which the Commission issued an opinion earlier this year.

This has reportedly been phased out following a standard EU pre-regulation review process. However, the Commissioner did not confirm this.

She was also asked about preliminary measures – an existing tool she dusted last year after an extended period of inactivity, and used it in one case against chipmaker Broadcom.

In that regard, she said the tool had proven useful – noting that the Broadcom case would be settled in a year (which is a very quick turnaround for a competitive case) – and she suggested that the tool be in Could be used more frequently in the future. "I think we'll see that we can use it more often, "she told MPs.

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Katherine Clark