The European Union (“EU”), among other polities, has illuminated the ways in which hegemonic digital platforms like Amazon, Facebook, Google, and Uber have disrupted the way the public understands competition, democracy, information, and data privacy. As detailed in a recent EU Commission report, the market power enjoyed by these and other digital monopolies entails not only risks to competition but also to consumer well-being itself. Tribunals from diverse countries such as Australia, the U.S., and the UK reached similar conclusions. In fact, multiple court rulings and public investigations have established that the data of 85 million Facebook users were traded, exposed, and commodified for political purpose in violation, not only of Facebook’s own terms and conditions, but of various national and international laws and treaties. Such data exploitation threatens the privacy of users. And although these privacy concerns are serious, they are not the only threat.
Competition is at risk: indeed, it has yet to be studied to what extent the more than two hundred Google acquisitions during its short lifetime will compromise innovation, competition, and consumer well-being. Despite the undoubtedly useful technologies these companies have produced, the digital leviathans monopolizing the cyber ecosystem have revealed themselves as the “bad guys,” as established in judicial rulings at every legal level, within and outside the EU Ursula von der Leyen, President of the European Commission, warned before being elected that “it may be too late to replicate hyperscalers, but it is not too late to achieve technological sovereignty in some critical technology areas.” Others are also concerned about the overwhelming power of technology companies. Shortly after the European Commission presented its European data strategy with the undisguised intention of counteracting Silicon Valley’s and China’s data power, the United States Congress subpoenaed the top tech corporations to understand “the degree to which these intermediaries enjoy market power, how they are using that market power, whether they are using their market power in ways that have harmed consumers and competition, and how Congress should respond.” Digital capitalists have lied, evaded taxes, stolen data, abused their dominant position, and knowingly caused social damage by defending their position (and the benefits of their shareholders) against the collective interests of citizens all around the world.
Why are criminal corporations permitted to get away with lying, tax evasion, data theft, abuse of market position, and other forms of social harm? Why, despite all the institutional big words, has so little been done in terms of regulatory developments or more effective enforcement? And why, despite the growing academic scholarship on the social harm wrought by digital corporations, do we still lack a comprehensive criminological theory that explains the rationale behind them? There are chiefly two sets of reasons: academic and political.
Academically, this highlights one of the main deficiencies of legal studies (particularly those related to criminal law): there is a myopic emphasis on isolated problematic and individual perpetrators, causing a lack of meaningful structural analysis of the legal system and society as a whole. In contrast, research into the socio-economic factors behind crime are robust as evidenced by the wealth of scholarship. The best evidence of this fact is the wealth of scholarship drawn from around the globe. However, and despite several remarkable works—some of them further analyzed here—theories of crime and deviance that target not just the socio-economic conditions of certain groups but the system of production, remain, at best, marginalized. The lack of critical structural analysis within legal studies affects not only criminal law and criminology but also every legal and political field. To illustrate, since the 1924 publication of Law and Marxism: A General Theory, no other significant book outlining a general legal theory questioning the liberal legal dogma has been published in Western countries. The lack of structural critique to the foundations of legal liberalism has helped naturalize capitalism as the only conceivable system. Of course, this does not mean that the liberal hegemony has not been challenged and disputed. It has. For instance, decolonial authors such as Boaventura de Sousa Santos have defended a pluralistic legal approach, targeting the colonial and Eurocentric core of liberal legal theories. In the same vein, Indigenous scholars such as Glen Coulthard and Moana Jackson have defended the decolonization of the settler-colonial states such as Canada and New Zealand. For instance, Moana Jackson, in a brilliant critique of New Zealand’s heavily racialized criminal justice system, defended the coexistence of Westernized law along with Indigenous legal knowledge and practices. Also, Latin American political and legal theorists such as Alvaro García Linera and Carlos Wolkmer outlined, and eventually succeeded in proposing, pluralistic constitutional frameworks consistent with Indigenous and progressive values. However, as promising as these are, such examples of critical legal thinking from the Global South have limited influence over critical legal scholars in the Global North.
Institutions and public servants suffer from a similar trouble, although with different ramifications. Authorities’ legal response to the acts of criminal corporations—from the gentrification processes unleashed by Airbnb, to the violation of labor laws in the case of Amazon or Uber—arrive too late, and without offering solutions to the multiple problems. There are two principal explanations for this. The first is technical, specifically with the rapid pace of the digital transformation. In an unprecedentedly short period of time, digital technologies, from mobile messaging to agriculture or finance, have become omnipresent in people’s everyday lives, and that applies to both the Global North and the Global South. The second is political; the acceleration of technology has outpaced and outmaneuvered liberal democracy’s archaic legislative processes. Neither the Global South nor the Global North have adequately funded or implemented the digitalization of its bureaucracies and provision of services. As recently demonstrated during the COVID-19 crisis, this has prevented the public sector from adequately reflecting broader social and economic transformation: a new reality in which the digital sphere is not just a part of everyday life, but in many instances, operates as its basic infrastructure. Large digital corporations, meanwhile, have not wasted the opportunity. Making extensive use of the “silicon doctrine,” they have taken advantage of loopholes in areas ranging from privacy to labor, education, and even housing. As this Article will further analyze, where there were laws, these same corporations have not hesitated to violate legislation to realize a new status quo.