As lawyers, we often talk in terms of businesses as platforms and intermediaries, particularly in terms of their roles and liabilities. In this very recent publication, Trebor Scholz, an associate professor of culture and media, launches quite an attack on platforms of all sorts. Although, perhaps inevitably, he ends up advocating at best regulation, at worst extinction, Scholz’s focus is not on the more typical subjects of copyright infringement, offensive speech or fake goods. Instead, he looks at the relationship of online platforms with those who provide the labour to make them successful: those who turn up when a car is booked, or complete a programming assignment, or who answer a simple question or defeat a CAPTCHA. Perhaps befitting his profile’s description as a ‘scholar-activist’, Scholz sides with the workers, arguing that many popular platforms today are demanding, demeaning and exploitative.
Scholz’s sights are set not only on the current darlings of Silicon Valley, but also some intermediaries which have fallen out of focus. Amazon’s Mechanical Turk enterprise gets a lot of coverage, with particularly critical discussion of the way in which, true to its name, it can be implemented such that users think that they are interacting with a sophisticated computer system (performing, for example, automated image recognition), when in fact they are seeing the output of hidden human endeavour — dehumanisation for only a few cents per task.
While these, and similar, services may promote an image of boundless choice, effortless flexibility, and the promise of convenient income, with language of participation or of ‘tasking’, users engaged in such tasks are, Scholz argues, firmly ensconced in the world of work. To the extent that there is choice, his argument goes, the choice is between how many jobs they need to work, and which platforms they might wish to use at any particular point: their freedom does not extend as far as choosing whether or not they actually work at all. He criticises in particular those services which encourage price competition between would-be workers, in what some might consider to be a ‘race to the bottom’, as well as those services which attempt to inhibit communications between workers.
Perhaps more controversially — or, at least, more thought provokingly — Scholz argues that time spent on social media should also be regarded as work, with ‘users’ in fact engaging in labour to the benefit of social network providers, supplying them with content and personal data, which the provider then monetises. Other works explore the addictive nature of social media (Elias Aboujaoude’s ‘Virtually You‘), the way in which Internet access may have physical effects on the structure of our brains (Nicholas Carr’s ‘The Shallows‘), and the negative effects of the pressures of being surrounded by carefully-curated posts apparently depicting a perfect lifestyle (Sherry Turkle’s ‘Alone Together‘), but I do not recall reading anything which promotes so strongly the idea that what many regard as relaxation or enjoyment should, in fact, be treated, and recompensed, as labour.
Unsurprisingly, given the polemic introduction, Scholz feels that the legal frameworks afford insufficient protection for such workers, and fail to place adequate controls on the platform providers. He is sceptical that these platforms really are technical intermediaries, connecting one party with another, instead preferring a view that they are intimately involved in the underlying service. He would appear to be in good company, with the Employment Tribunal ruling in the recent case of Aslam that ‘the notion that Uber in London is a mosaic of 30,000 small businesses linked by a common ‘platform’ is to our minds faintly ridiculous.’
Scholz proposes a number of solutions: some interventionist, and some more free market oriented.
From an interventionist perspective, he opines that legal frameworks should be updated to take account of this type of services, arguing that they should protect workers as employees or, at least, afford them the same rights as employees. Key among those rights would be a minimum wage and appropriate holiday and sick pay. Scholtz also lambasts what he regards as working in an environment of untenable perpetual surveillance, in which workers are reviewed and ranked on a regular basis, and where platform operators make material decisions, such as bans or refusing to offer further work, based on observations of a worker’s performance. Scholtz argues that few employees would put up with such intrusion, so it is unreasonable to expect ‘gig economy’ workers to accept it. While one can sympathise readily with a distaste of micromanagement, a restriction on this kind of activity may be fundamentally damaging to the user experience, and thus the business as a whole as, for many users, there is considerable value in being able to see how a particular worker or establishment has been rated by others.
Alternatively, he points towards proposals to tax social network providers based on the volume of data which they gather from citizens of a given country, requiring them to essentially convert data to money and return a proportion of it.
Scholz also appears to be a proponent of a universal basic income: an unconditional payment, guaranteed to every citizen (irrespective of any other income), set at such a level that everyone has access to the necessities of life without needing to work. He argues that, at least in part, the simplified administration of such a system would lessen the associated costs, meaning that money currently spent on bureaucracy, such as minimising fraud, could be added instead to the pot to be distributed to all citizens.
Importantly, given the supra-national nature of the Internet, all countries would be required to adopt a universal basic income, even though, given the disparities in costs of living, some countries would have to pay more to their citizens than others. I suspect that this is something which will need considerably more discussion against a backdrop of increasing autonomy, and may be something which the SCL’s AI Group wishes to consider, as part of broader ethical considerations associated with technology which has the potential of replacing jobs.
In terms of free market solutions, Scholz speaks strongly in favour of a ‘platform co-operative’ approach, whereby workers form communities through which they provide their services, focussed on a sustainable model. Such a model would either remove the hated, exploitative intermediary, or at least involve an intermediary more sympathetic to the interests of the workers. The last chapter of the book looks at this in quite some detail, drawing on a handful of situations where this has been adopted successfully. I very much doubt that law firms were on Scholz’s mind as he put this chapter together, but it strikes me that, in terms of a group of individuals getting together to form a business based on shared incentives and interests, a traditional partnership model may well display some, or even all, of the characteristics of the model.
Fundamentally, Scholz appears to argue that the current flavour of platform intermediaries must cease to exist — that their failure should be welcomed and hastened, to be replaced with more worker-friendly approaches. Given the breadth of platforms which are in scope, this would require an almost complete change to nearly all of the services which we now take for granted: the scope of his concerns extends beyond those platforms which facilitate a service industry, into social networks and other intermediaries to which users provide data.
There has been recent commentary that some intermediaries are ‘too vital to fail’, such as where they are being used as a state-sponsored replacement for traditional public services: the BBC cites the example of Pinellas County, Florida, deciding that it was cheaper to subsidise Uber journeys than to extend public bus routes.[1] Similarly, many of these intermediaries employ large numbers of people who would, one should imagine, be left out of work if Scholz’s vision materialised. The ramifications of an accelerated push towards the extinction of these platforms would, it seems, require careful consideration.
Overall, this was an interesting, thought provoking book. It is relatively short — just shy of 200 pages — and it is written in an accessible, engaging, style. I found Scholz’s repeated references to Snowden, and state-level surveillance, to be somewhat of a distraction: they felt shoe-horned in without a clear role to play in advancing his argument but, fortunately, these diversions are relatively few. Perhaps others will see more relevance in them than I did.
Inevitably, given its subject matter, this is more likely to be of interest to those lawyers who like to think about the broader impacts of their work, and of their clients’ technologies and services, than to those focussed purely on the intricacies of a particular legal framework: it is not, after all, a book about the law, and it is all the better for that. It is a challenging perspective for those more likely to be advising those behind platforms, rather than those who engage with them, and it is, without doubt, a timely and welcome piece of scholarship.
If you, like me, are still pondering on the 2015 Tech Law Futures forum’s theme of ‘keeping humans at the heart’, this is worthy of your attention, even if you do end up reading it while sitting in an Uber, as you dash between engagements.
‘Uberworked and Underpaid: How Workers Are Disrupting the Digital Economy‘ by Trebor Scholz. ISBN: 978-0-7456-5357-0
Neil Brown is the managing director of decoded:Legal (https://decodedlegal.com), a law firm specialising in helping Internet, telecoms, tech and healthcare start-ups and businesses.
