La didattica del capitalismo della sorveglianza: profili giuridici

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.