title: La didattica del capitalismo della sorveglianza: profili giuridici
title: Trento LawTech Student Paper series, n. 90
titleType: Other
Creators: name: Catalano, Alice
Publisher: name: Zenodo
Year: 2023

description: With the declaration of the Covid-19 pandemic by the World Health Organization
in March 2020, educational institutions worldwide abandoned physical school and
universities spaces for the purpose of virus containment, transitioning to a different
model of education known as "distance learning" or "Emergency Remote Teaching". In
order to carry out educational activities, these institutions, both in Italy and beyond,
turned to the so-called "proprietary platforms", which are infrastructure services owned
by large companies in the digital market. This thesis carries out a careful analysis of the
critical issues related to the possibility that the characteristics of "surveillance
capitalism", brilliantly elucidated by the American academic and sociologist Shoshana
Zuboff, may also engulf the realm of education, posing risks to academic freedom,
scientific research, and the protection of personal data.
The first chapter analyzes the birth and development of surveillance capitalism.
The evolution of this new economic model begins with Google's discovery of the
"behavioral surplus", which becomes a crucial raw material whose "extraction" plays a
central role in the activities of digital-era operators. Through the insightful analysis of
Zuboff, Pagano, Rikiap, Wu, Khan, and Florio, the chapter will demonstrate how
surveillance capitalism has contributed to the emergence of intellectual monopolies and
"data-driven intellectual monopoly", illustrating how even companies operating outside
Silicon Valley have recognized the potential of the "behavioral surplus." The birth of the
"data-driven economy" brings with it a series of issues, such as the commodification of
individuals, user manipulation, often victimizing consumers through unfair commercial
practices, as well as risks to individual self-determination, with serious consequences for
democracy. Finally, as surveillance capitalism's activities raise numerous issues
regarding the protection of personal data, we will reconstruct the framework for privacy
protection, starting from the right to privacy and delving into key concepts of the
General Data Protection Regulation (GDPR).
In the second chapter, it will described how the oligopolistic and monopolistic
operators of surveillance capitalism have extended their influence "outside of Silicon
Valley" into the field of research and education. Firstly, the chapter will examine how
major platforms and scientific publishers have gained a predominant role within
university research by seizing control of infrastructure and overseeing the entire
research workflow, resulting in a situation of lock-in for much of the research world. It
will then discuss the phenomenon of "surveillance publishing" described by Jeff Pooley
and the possibility that major publishers can invisibly and strategically influence key
decisions in academia. By presenting empirical data, it will be suggested the presence of
undue interference by surveillance capitalists in the activities of major publishers. This
part will also analyze the phenomenon of Emergency Remote Teaching, "platform
education", and "e-proctoring", highlighting how Italian educational institutions and
most universities have relied on surveillance capitalists' platforms for distance
education. In addition to the risks described in the first chapter, there are numerous
issues related to the sharing of specific categories of student and minor data, with the
potential development of student performance monitoring systems and of a global
educational monoculture dictated by proprietary platforms. The thesis will also explore
some alternatives, which were already available during the pandemic, such as the Italian
open-source platform GARR and the French choice to implement a government portal
for educational purposes. Furthermore, it will introduce two European-level measures:
the European open-source infrastructure GAIA-X, not originally designed for educational
purposes but potentially useful for education, and the European education space, which
encompasses the digital education action plan for 2021-2027.
The third chapter will conduct an examination of the problematic aspects of
distance learning in relation to the GDPR. This will be followed by a partial analysis of
some privacy policies of the most used platforms during the Emergency Remote
Teaching experience. First, the analysis will cover the privacy policy formulated during
the implementation of distance learning in March 2020, then they will be compared with
current privacy policies. Many of the issues that will arise also relate to the phenomenon
of e-proctoring, so we will analyze the decision of the Italian Data Protection Authority
to sanction a well-known Milanese university for the use of such software, examining
how the Italian Authority's observations have not always been shared by European
counterparts. Since the phenomenon of distance learning has largely impacted children
and minors, the thesis will propose a greater application of the "privacy by design"
principle and the mandatory assessment of the impact on the protection of personal
data when handling the personal data of minors. Finally, the chapter will look at a new
challenge shared by the education sector and the GDPR: artificial intelligence,
particularly the Chatbot ChatGPT, whose use in education is highly controversial.
In the fourth chapter, it will be hypothesized the joint use of antitrust legislation
and the GDPR to erode the monopolies and oligopolies that surveillance capitalists have
built in digital markets through their data extraction activities. These two regulatory
frameworks are considered suitable for protecting the vulnerable condition of student-
users, understood as a combination of consumers and data subjects. The chapter will
also examine the judicial and non-judicial developments that recognize the value of Big
Data as market assets. Finally, it will be analyzed the European data strategy, especially
the Digital Markets Act, a regulation aimed at reconciling antitrust and personal data
protection. Subsequently, it will briefly introduce the Digital Services Act, the Data
Governance Act, and the Data Act proposal. While none of these legislative acts
specifically targets the education sector, the final chapter will consider their potential
application in efforts to counter the practices of surveillance capitalism in the provision
of distance education.