title: #Hyperconnected: Law and the digital influence over individual identity
Creators: name: Englezos, Elizabeth
Publisher: name: Griffith University
Year: 2022
Subjects: subject: individual identity
subject: digital influences
subject: data protection
subject: privacy
subject: law
subject: legal consent

description: This thesis considers how our modern hyperconnected lives affect the development of individual identity. An important component of the following analysis evaluates the law’s role – if any – in the mediation of this digital influence: Should the law intervene? And if so, how? The research presented begins by assessing the current legal protections for individual data and privacy, and the shortfalls of those protections. As such, the research begins with a consideration of the European Union’s General Data Protection Regulation (‘GDPR’). The GDPR has introduced some novel protections that include extraterritorial applicability. The GDPR therefore represents global best practice in the area of law and the digital space making it especially relevant to any critique of the law, its efficacy, and its potential to effect change both in the digital space and in relation to the digital influences over individual identity. Unfortunately, many of the novel protections provided by the GDPR are undermined or even nullified by the individual’s consent to the terms and conditions that govern most agreements relevant to the digital space. The next section of this thesis, therefore, examines the doctrine of legal consent and how consent is used to sidestep legal protections that would otherwise prevent data access and misuse. This examination of consent exposes fundamental flaws in the way consent occurs in the digital space and demonstrates why traditional legal consent is not fit-for-purpose when applied to digital and online interactions. One of the more challenging aspects of this analysis related to the lack of language or terminology which could accurately capture and explain the mechanisms of digital influence. This thesis therefore introduces a theory of digital influence referred to as ‘digital translation’. This theory illustrates not only how digital influence occurs, but also the inherent assumptions underlying this process and the role of digitality. This theory also accounts for the way in which decisions are made in the digital space and applied to a digital version of the person to produce outcomes in the real or material world. Algorithms or automated decision-making systems play a fundamental role in this process. The theory of digital translation as presented in this thesis therefore depicts how algorithms directly affect individual outcomes and identity, and precisely identifies the points at which this influence occurs. Other important concepts introduced are the ‘data entity’, the ‘digital translation’ and the ‘digital proxy’. Digital translation also explains how the digital proxy acts as a ‘stand in’ for the real person and is assumed to be accurate or ‘real’ despite being incomplete and context dependent. Algorithms are, therefore, a central theme of this research as they are used to define and describe the person, or to simplify a process or question so that it can be reduced to a set of data-based variables. This thesis demonstrates how algorithmic interventions undermine individual autonomy by denying the individual essential opportunities to selfdefine, to change one’s mind, and limiting the individual’s options or opportunities. The automation of these decision-making processes further affects personal autonomy by denying the individual any opportunity to correct erroneous assumptions or misconceptions about them, their personality, or their attributes. ‘Automation bias’ allows assumptions of accuracy to justify the denial of human review or oversight. When algorithms are combined with automation bias, there is little chance for individual recourse except in instances of system-wide failures. Centrelink’s online compliance intervention (OCI) is a prominent example of a system-wide failure and is presented in Chapter 4. Centrelink’s OCI sought to audit and identify those defrauding the system, but due to a design flaw suspended the payments of a large proportion of welfare recipients and threatened many with legal action. Chapter 5 directly addresses legal capacity and autonomy as a central tenet of the law and its application. This chapter’s research demonstrates how algorithms and the digital space undermine personal autonomy. This chapter proposes three essential elements of personal autonomy and describes how they are undermined by the digital space. This denial of autonomy also raises questions of the quality of accountability and responsibility, and whether legal personhood is threatened by the digital space. Chapter 6 then considers the threat of algorithms and automation bias when used to determine matters of freedom and personal liberty. This chapter evaluates the algorithm known as the Risk Assessment Tool which was used to inform the allocation of policing resources in the state of New South Wales. The research demonstrates that deployment of algorithms in these instances can also have a marked effect on the individual’s social identity by inducing perceptions of criminality with the subject’s community, in addition to feelings of persecution, isolation, or worthlessness. Social identity and core personal beliefs are also informed and shaped by our social networks. Chapter 7 therefore considers the impact of social media algorithm recommendations that prioritise some friends over others. By determining which friendships flourish and which friendships fade, social media recommendations affect social and personal identity by not only changing how the individual sees themselves, but also their beliefs, their self-narratives, and their understanding of the world around them. This thesis concludes by examining how the law can protect the individual against these forms of digital influence. It suggests a new legal approach that focuses on the outcomes produced from data and digital decision-making processes instead of traditional approaches that centre on data or privacy alone. The research also advocates for a regulatory approach which blends self-regulation and external oversight in a way similar to those introduced by the GDPR.