Essay #12 in the Data and Pandemic Politics series on data justice and COVID-19

Editors’ Note: Vidushi Marda argues that rather than looking for moments of sectoral transgression by technology firms as a strategy for orienting regulation and democratic checks and balances, we should pay attention to the ways in which firms actively create public-sector demand, conceptualising and making new spaces in relation to essential services that can only be filled by technological innovation.

The editors would like to thank the Rule of Law Programme Asia, Konrad-Adenauer-Stiftung for their support in curating this essay.

In this piece, I argue that the concentration of commercial technological power witnessed during the pandemic is indicative of, and facilitated by, pre-pandemic structural shifts evidenced in multiple jurisdictions in South and South-East Asia and offer reflections for thinking through the frame of “sector transgressions”.

Pre-pandemic structural shifts

Over the past few years, the relationship between states and technology firms has evolved in significant ways. The traditional notion of states determining governance needs and subsequently choosing tech firms to supply technology that complements these needs is slowly waning. Increasingly, technology companies market technical solutions to state actors, creating demand for their own products. This shift is crucial to understand for several reasons.

Firstly, because governments are actively sought out by private companies with a tech-solutionist lens, problems of governance increasingly tend to be framed in a way that lend themselves to solutions being found in technology, even when such an approach is ill-advised. For instance, smart cities were a concept first christened by IBM, and a few decades later are now a policy initiative across multiple jurisdictions in the world from Myanmar to Argentina, premised on the idea of collecting data and using technical infrastructures for public service delivery. Concerns such as exclusion, surveillance, diluting accountability and violating fundamental rights seem to become secondary concerns and inconvenient hindrances to the deployment of technologies.

Secondly, the nature of this reconfigured relationship has important implications for rights and accountability. Because technical solutions are often marketed to governments, companies offer to provide “free” pilot programs that cost the government no money, or sometimes even offer to carry out the program at subsidized rates in the public interest (a theme noted throughout the duration of the pandemic, too). This often leads to situations where the design, development and deployment of certain technologies are not subject to accountability mechanisms or procurement processes as per routine, but rather fly under the radar or obfuscate real-world impacts through the lens of trials, as seen, for example, with Aadhaar in India. The notion of acquiring technical goods and services for free seems to signal to state actors that such provision comes with no strings attached, to dilute scrutiny and analysis, even though it is now well known that if technical services or goods are free, individuals and their data are often the product being sold and exploited.

Thirdly, states default to partnering up with tech firms also because it lends a veneer of modernity, efficiency and efficacy to their image. The knee-jerk reaction of States to public safety crises has been to usher in technical solutions that involve greater surveillance and dilution of rights and accountability. For instance, in New Delhi, following horrific crimes against women in 2012, the Delhi Police started a hotspot mapping program that soon evolved into a predictive policing division to ensure that the public knew they were taking the issue seriously. Similar trajectories were seen across the United States (and the world) following the 9/11 attacks in 2001. This is evident through an analysis of procurement processes too - procurement processes are by and large geared towards ensuring that surveillance technologies are embedded into societies but rarely have space to question the existence of these technologies at all. Understanding this can also help explain why States seem to invest heavily in problematic and clunky technologies like emotion recognition, despite overwhelming evidence of their limitations.

The fact that procurement is often a two-way street between States and companies is telling as well - scrutiny, legitimacy and analysis of technical solutions do not form a meaningful part of the procurement ecosystem. These processes are framed in ways that make them seem mutually beneficial to states and private companies, but individuals and communities do not seem to find place in the equation.

On sector transgressions

In her 2020 paper, Professor Tamar Sharon defines sphere transgressions in context of tech giants as the process through which “the (legitimate) advantage these actors have accrued in the sphere of the production of digital goods provides them with (illegitimate) access to the spheres of health and medicine, and more worrisome, to the sphere of politics”. This is an important vehicle through which we can push thinking through the role of technology in governance at a systemic and structural level.

The illegitimate access to health, medicine and politics seems to have been normalised as part of the trajectory of private tech firms, so much so that that the idea of technical goods and services moving between distinct sectors is limiting, as the production and deployment of technology for governance solutions across the board has become a sector in and of itself. Surveillance infrastructure has made its way into various sectors of everyday life, and normalised through policy initiatives and State procurement - they are intended to work across domains and rarely designed - technologically, legally and in practice - for limited or sector-specific use cases. In other words, sector transgressions have been cemented as a feature, not a bug, of the growth of commercial technology firms.

The Global Data Justice’s current hypothesis for when a transition becomes a transgression, i.e. a power grab, dilution of accountability, exclusion of other points of view, etc. is accurate. However, the provocation I offer following my analysis in this piece is that this is in many ways the status quo - the current transgression to pay attention to is not between sectors, but a transgression of fundamental democratic principles perpetuated through the creation of a new sector.

Vidushi Marda is an Indian lawyer and researcher. She is currently a Senior Programme Officer at ARTICLE 19, where she leads global research and engagement at the intersection of AI, infrastructure and human rights.

Suggested citation: Marda, V. (2021, November 21). Transgression through a Sector: On COVID-19, power and technology. Data and Pandemic Politics, 12.