Enforcing rights on surveillance capitalism

Working enthusiastically from home amid the COVID-19 pandemic, the Board of Judges (BoJ) of the Dissertation Writing Contest (for law students) sponsored by the Foundation for Liberty and Prosperity (FLP) and the Ayala Group unanimously selected the winners after thorough discussions via Zoom videoconferencing.

Chaired by Senior Justice Estela M. Perlas-Bernabe, the BoJ declared Maria Angela Teresa Sebastian (UP) overall champion with P300,000 cash plus a trophy. The second place (P200,000) was copped by Genica Therese Endaluz (ADMU). The three third placers — Patrick Edward Balisong (ADMU), Angelette Bulacan (FEU), and Carlota Villaroman (San Beda-Manila) — each won P100,000.

The five winners bested eight other finalists who will each be awarded P20,000. They are Juan Paolo Artiaga (UP), Archiebald Capila (San Sebastian College), Patrick Angelo Gutierrez (FEU), Daphne Dianne Mendoza (DLSU), Ronald Kevin Montellano (FEU), Robie Quino (San Beda Graduate School of Law), Maria Luisa Sebastian (ADMU), and Vladimir Joy Tamargo (FEU). (The five winners will also get P20,000 each as finalists.)

The other members of the BoJ are Dr. Edilberto C. De Jesus (former secretary of education), Dean Maria Soledad Mawis (former president, Philippine Association of Law Schools), lawyer Solomon M. Hermosura (general counsel, Ayala Group), and lawyer Joel Emerson J. Gregorio (consultant, Asian Development Bank).

The dissertations of the winners and finalists can be accessed at www.libpros.com.

The FLP Dissertation Writing Contest trains law students to think, study, and write clearly, creatively, and critically beyond the classroom curriculum and the bar examination, with emphasis on how the safeguarding of liberty and the nurturing of prosperity under the rule of law could be applied to various aspects of legal theory and practice.

Accordingly, first placer Sebastian’s 50-page masterpiece (fortified by 310 footnotes and an 18-page bibliography) tackled the commercialization of the “digital footprint” vis-à-vis the right to privacy and the right to data protection. Digital footprint refers to the information disclosed by a person from online movements, transactions, and records, forming parts of a single virtual database.

Everyone using the internet produces digital footprints which can be captured, analyzed, and sold by enterprising individuals or corporations. This capture, analysis, and sale is called “surveillance capitalism” by Shoshana Zuboff and is mainly used in the context of the free services of data giants Google, Facebook, YouTube, Instagram, Twitter, Snapchat, TikTok, and others.

Locally, digital footprints can also be sourced from online retailers (like Lazada, Shopee, MetroMart), banking services (remittances, credit card payments, cash transfers, etc.) and food deliveries (like Foodpanda, Grab Food, MyKuya). All these sites and services are veritable sources of digital footprints which could be commodified and commercialized.

Statistics-wise, of the 108 million Filipinos, 79 million are internet users, resulting in a penetration rate of 73.1 percent, the 12th in the world. Local users spend an average of 10 hours and 2 minutes per day on internet devices, ranking first in the world. Filipinos also rank first in the world in daily social media use at an average of 4 hours and 12 minutes per day across 10.4 social accounts per person.

Hence, Sebastian posed this question: How can the right to privacy and the right to data protection be effectively enforced in a way that safeguards liberty and nurtures prosperity?

After exhaustively reviewing relevant local and international laws and covenants, she concluded that it is best to classify digital footprints as either (1) outside or (2) within the commerce of man. By treating certain digital data as outside the commerce of man, human dignity is accorded both to the natural or physical body and to its digital extensions, thereby safeguarding liberty.

On the other hand, by classifying certain other digitized info as within the commerce of man but as the exclusive property of the users, people are accorded the opportunity to monetize the use and the fruits of their digital footprints, thereby nurturing prosperity. This “hybrid approach” expands the treatment of personal data from traditional privacy protection regimes to ones under property laws.

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