Introduction

This meeting took place in the context of a project on sphere transitions and transgressions being conducted by the Global Data Justice team, based at Tilburg University, NL. The purpose of the project is to map, research and report on changes in technology firms’ activities and strategies as a result of opportunities and markets created by the COVID pandemic. The meeting, convened jointly with the Rule of Law Programme Asia of the Konrad Adenauer Stiftung, incorporated civil society organisations from the Asian region and aimed to discover whether (and how) corporate sphere transgressions were taking place in Asian countries as a result of the pandemic.

The project defines a sphere transition as a change in the way technology firms deploy their infrastructural and analytical resources and capacity. This may involve taking on aspects of public sector activities in relation to the pressures of the pandemic on states (for example by creating contact tracing apps or engaging in public health-related logistics) or to capture new markets which become important as a result of the pandemic emergency such as online education, international public health communication or biometric monitoring and tracking in relation to immigration or security.

With this meeting, and the project more broadly, we are interested in investigating the conditions under which a transition, which may be a manifestation of successful innovation capacity and the provision of needed resources, becomes a transgression (see Sharon 2020) where firms, for example, crowd out public-sector capacity and expertise, create economic and political dependencies that are disruptive to democratic processes or to regulation, or take on tasks in fields where they lack the ethical and domain-specific capacities to perform them appropriately. We are also interested in exploring the conditions under which companies increase their infrastructural power to create new monopolies or monopsonies. These changes occur without the pressure of pandemics, but our hypothesis in the project is that the pandemic-related emergency conditions in public governance open up new markets, incentivise firms to explore new areas and ways of using their capacity, and may lead government to decrease or even suspend the power of regulators in the areas of competition and data protection.

Our main questions for the meeting were:

  • To what extent do we need to think about the expansion of commercial technological power as a pandemic issue, and to what extent are they a consolidation of existing trends?
  • Is it correct to frame the problem as one of transgression by technology sector firms, or has the technology sector expanded its activities and domains of operation to the point where we should instead pay attention to, for example,
    • the legitimacy (rather than legality) of technological intervention
    • the state’s functional ability to regulate new types of partnership and independent initiatives by firms
    • powerful actors, including state institutions, increasing their potential for political domination through technological infrastructure and capacity?

The aim of asking these questions, originally formulated in the European context, of a group of Asian civil society organisations was to create a basis for comparison between regions, and to understand more about how regional and national political and economic context affect the relationship between the pandemic emergency and governance of, and through, technology.

Reflections from the meeting

The workshop brought together a series of highly contextual insights, both in terms of how the concept of sector transgressions travelled as well as how central the existence of the pandemic was in order to be able to understand developments in the region. Some of the issues we will cover in this section, are the connections between the role of the state and public-private partnerships, the emergence of a consolidation of tech offerings which have come together as ‘super apps’, and the implications that this has for the function creep of some of the tech offerings.

The Role of the State

One of the common inputs from the roundtable was a reflection on the role of the state. In terms of the concept of sector transgressions, participants felt that the state played different roles. Very often it took on the role of a facilitator wherein, it enabled and invited the private sector to enter into domains that were traditionally seen as public services ( health, education). In other manifestations, the state played the role of a collaborator which provided general regulatory oversight for the deliverable but left the detailing to private sector enterprises. In these different functions what was clear was that the role of the state began to change from being a provider to a customer. There was an emphasis on tech solutionism, where systems were being adapted based upon what tech had to offer. An outcome of this change was that state capacity was slowly eroding and as a result there was a loss of legacy systems.

Another aspect that was raised by several participants was the fact that the erosion of state capacity and the subsequent ubiquity of private enterprise was not specific to the pandemic but that whether in terms of offering smart city solutions or payment apps, these interventions were couched in terms of a need to improve the efficacy and efficiency of how services are delivered. However, in this delivery of services what was missing was how such technologies also cause displacement and exclusions from services. The balancing of efficiency and equity considerations were often not considered in the design of such collaborative projects and as a result the material implications of such projects were not anticipated.

Further, whereas thinking of services in terms of sectors were seen as useful in terms of mapping transgressions and transitions, participants also felt that in terms of tech and data, such categorisation might be limiting. This is because they argued that such a framing did not consider the infrastructural implications of data which flows between sectors, and already permeates between different actors. This infrastructural power was seen as synonymous with the ways in which tech companies now interacted with the state.

The nature of Public Private Partnerships

From the discussions, it is apparent that there is little evidence of contractual agreement or substantial public procurement framework between the government and private tech establishments to signify the existence of Public-Private Partnership (PPP) as the basis for many of the tech interventions springing up in Asia. The point of PPPs is to reduce the cost of a project proposed by the government to deliver improved services or generate revenue. The dynamics appear different in the Asian context; we have the private sector proposing and developing solutions that the public sector supposedly needs to operate a public good. Timeframes and predetermined obligations are typical features of PPPs. These concepts appear to take a more flexible outlook in the Asian context. Some of the potential reasons for this was the absence of political resistance, and the failure of the state and tech companies to conduct preliminary consultations to determine the full ramifications, and objectionable components of the projects as per inputs from the participants. Risk distribution and shared resources are essential components of PPP. This is in addition to the presumption that the parties have satisfactorily negotiated the terms of the partnership. Sector transgressions in Asia do not appear to leave much room for negotiations. Arguably, more risks are borne by the public and the tech companies. The tech companies willingly accept the financial risks associated with the projects while the government spends political capital. The government either gains or loses political capital by endorsing the interventions or refusing to implement regulatory measures.

‘Super apps’ and the consolidation of tech interventions

Another emergent theme from the workshop was the presence of so-called super apps – “walled-garden ecosystems of services” – in many Asian economies, and the implications of their increased dominance during the pandemic. Distinct from the European context, where super apps have not flourished in the same way, participants noted how integral apps from companies like WeChat and Alipay in China, Paytm and Flipkart-PhonePe in India, GoTo [Gojek + Tokopedia] in Indonesia, and Grab in Singapore, among others, are becoming across various facets of people’s lives including for payments, transport and online commerce, and the potential for firms to exploit their dominant positions to collect vasts amounts of data about users and to disrupt competition dynamics.

In most cases, governments are quite supportive of the emergence of super apps that are offered by local tech firms, which it is argued are competing with multinational companies for local market share. In some cases, these apps offer services that are quasi-governmental and could be viewed as critical infrastructure. In terms of sector transgression, participants asked what does it mean for a private company to offer public services in a super-app model? What are the implications for competition and regulation, particularly in markets where regulators to date have not started policing the digital economy? The consumer-facing nature of these apps might make it easier for the firms involved to transgress onto new sectors and to use their data insights and computational infrastructures in problematic ways. This is an area ripe for civil society attention in the region.

Function creep

As mentioned earlier, many participants asserted that sectors do not exist in the region, the same way they would in Europe, for instance. They rightfully claimed that technology is seeping into every part of our lives, with an increase in technology-based surveillance. It doesn’t seem like there is a separate technology sector, instead digital technologies are ubiquitous. The question is: has the use of digital technologies really increased during this pandemic, or is this where we were headed anyway?

According to some, it cannot be said that the COVID-19 pandemic is a special state of exception with regard to use of digital technologies. It is a natural result of the pace of technological development and function creep. The participants had the opportunity to discuss in detail the concept of function creep in the region. It has been documented that in some countries in the region, governments are quick to deploy technology to silence dissent and repress civil society, but slower to launch technology-based interventions to provide public health services and support during the pandemic.

The discussion raised important and emergent questions of trust in governments vis-a-vis the private sector. A participant from India highlighted that in their experience, certain projects might take on the appearance of being a PPP, but in fact could be a private intervention. In some instances, there was a greater degree of reliance on private action over government intervention. This trend has implications for trust in and accountability from elected representatives when it comes to the use of digital technologies in the governance of private and public life in general, and during times of crisis, in particular.

It is also noteworthy that not every democracy in the region looks and functions the same. In a well-functioning democracy, citizens can claim accountability directly from their governments, which would be more complex or laborious if the rule of law is weak, there is a lack of democratic values, or the intervention is purely private-led. For example, in China, participants shared that there is a popular belief that technology firms can usefully be regulated. We are in the process of learning if the same can be true elsewhere, and if it fits with our present understanding of regulating sphere transitions and transgressions.

Conclusions and open questions

This meeting helped the organisers challenge and expand our understanding of the concept of sphere transitions and transgressions. We learned that peoples’ experience of sphere transgressions is highly contextual, and what matters on the local level can vary greatly. The meeting enlarged and supplemented the meaning of sector transgressions in general, and revealed that some transitions are a normal part of our digital lives.

Some questions remain, namely:

  • Are governments encouraging firms to expand in order to have domestic alternatives to Silicon Valley firms? Is this consolidation different from transition and transgression, and from innovation?
  • Is there lower scrutiny of domestic technology actors primarily because they are domestic?

We hope that other researchers examining data governance, regulation, and the current state of exception can expand on and add to our understanding. We invite you to share your thoughts on this meeting report via email. You can get in touch with the Global Data Justice Project by writing to info@globaldatajustice.org. We will publish a series of articles as a follow-up to this meeting on globaldatajustice.org starting September 2021.