The Digital "Coup Data"

Technological choices influence our daily lives, yet they largely escape the democratic debate. We are experiencing a “Coup Data”, a seizure of power by those who process data. Only a critical digital culture will enable us to understand this paradigm shift. It is above all a question of governance and sovereignty. Both at the level of individuals wondering how to regain control over their data, and at the level of institutions competing with the advent of platforms. More than ever, these societal issues call for European awareness.

1. Data, the algorithms that process them and the platforms that concentrate them have become so important in our lives and economies that they compete with the traditional power of states and influence the choices of their citizens. These iterative sequences of computer instructions suggest solutions to both simple and complex problems every second. From eligibility for a credit, a job, an insurance policy, to the distribution of students in university courses at the end of high school, the algorithms anticipate our actions, direct our interests, administer our lives, making their nourishing data the new keys to power.

Our social interactions are thus framed, governed by algorithmic systems whose logic is opaque, unexplained, or inexplicable to us. In this context, who governs? The legal code or the computer code? Who elaborates and controls the norm? The paradigm shift is radical. States are facing a clash of sovereignty.

2. The digital giants oppose national laws with their own constitutions, the famous Terms and Conditions, real adhesion contracts that are rarely read or understood. The platforms are granted or given the role of private regulators, with quasi-regalian prerogatives. Digital technology is becoming a soft-power issue, enabling it to surreptitiously impose its standard and creating unprecedented geopolitics.

3. Fully understanding this phenomenon requires a historical perspective, a legal analysis, and a political projection. The history of data bears witnesses to the irresistible rise of the culture of numbers to model a reality that goes beyond the human (I). This evolution explains the gradual transition from the reign of law to governance by calculation and algorithms (II). In this context, the challenge before us is to maintain the irreducible singularity of citizens (III).

I - From descriptive statistics to predictive algorithms

4. How have we come to rely collectively on numbers to direct our choices and establish laws by correlating our political decisions with arithmetic calculations? To understand this evolution, we must quickly go back over the history of data culture and make the link – still insufficiently studied today – between the emergence of statistics and the contemporary development of artificial intelligence algorithms.

The appearance of data is not a recent phenomenon. In fact, they have been circulating for tens of thousands of years, when mankind had to count resources, hazardous phenomena, everything that could be counted. The field of enumeration then gradually increased over time. Wishing to know its territories and populations, the State thus began to count its living forces, whether with a view to starting a war or distributing taxes. Thus, the link between data and power, between numbers and politics, has always existed. As such, it is not insignificant to observe that status etymologically means “inventory”, when statisticus refers to what is “relative to the state”. The birth of statistics is directly correlated to the creation of the modern state, which the English philosopher Hobbes referred to as “artificial man”.

5. From the 17th century onwards, “political arithmetic” therefore resorted to numbers to dispel arbitrariness. Statistics are an objective measuring instrument, making it possible to know a social reality that was previously inaccessible and complex. The development of mathematical tools of analysis and quantification (average, dispersion, correlation, sampling) to capture a supposedly uncontrollable diversity remains today the foundation of artificial intelligence, which is nothing other than an advanced form of statistics, with self-learning algorithms that have become not only descriptive but prescriptive, even “predictive”.

II - When data makes the law

6. In contrast to traditional statistics, the analysis of “Big data” takes everything into account. Data scientists pursue rules of association, repetition, and patterns. All the real is collected and decisions are induced by correlation, which replaces causality. Big data thus carries the belief that it is possible to access reality directly, by collecting and measuring all the signals, without having to interpret or question their contents. We rely on them in an almost divine way. This revolution derives its power from its apparent innocuousness because it has to do with governing the potential (what might happen) rather than the actual. Hazard and risk are now relegated to the subjective realm of belief, which should be discarded in favour of a digital truth.

7. The desire to put an end to all uncertainty is reinforced in a security society, characterised by a crisis in the representation of its institutions and the constant application of the precautionary principle. In order to maintain a semblance of control, we rely more and more on algorithms and their feeder data. We come to govern from a statistical expression of reality that is no longer interested in causes and intentions, and to erase people's very existence. The logic of pre-emption is used to model the environment to prevent any risky behaviour from occurring. The bad payer will be excluded from the field of credit. Anyone who crosses the path of a citizen showing the signs of Covid-19 will be asked in advance not to go to work or to his/her local food store. When the individual considered dangerous will be turned back upstream of the stadium or concert hall. By wanting to preserve us from uncertainty, this logic of pre-emption evacuates any difference.

8. In these circumstances, who will be the new excluded? Should we be reduced to our data and apprehended by a quantitative approach? Ignorance of the causes of algorithmic measures carries the risk of repeating prejudices, assigning us in the unquestionable, resignation, and thus to the disappearance of the public space. Now, politics is precisely linked to decision-making in uncertainty. Digital technology cannot contribute to erasing it, by claiming to put all our actions into equation. When big data substitutes facts for law, data make the law. The reduction of social facts to mathematical formulae and indicators has always worried philosophers, writers, and scientists, who saw in it a risk of moralizing social life through algebra and calculations. This reflection raises essential questions about the possibility of thinking about chance, free will and the singular. This tension itself refers back to the old fantasy of substituting calculation for law, the ancestor of the contemporary one of replacing the legal code by the computer code, and why not tomorrow the judge by the machine.

Now, there is nothing more dangerous than to induce in order to deduce. The risk would then be to see the deviation from a so-called social or economic ‘norm’ defined by a computer code, unrelated to the legal ‘norm’, sanctioned tomorrow. A subject would no longer be punished for his or her actions, but for his or her profile in each situation. What will happen when the data identifies criminals even before they have committed their crimes? What will be left of the presumption of innocence for those with a 93% chance of re-offending? It would then be a matter of sliding imperceptibly from the beginning of execution to the preparatory act, and then from the preparatory act to the potential to commit a crime. By an extraordinary shortcut, the newest of technologies would then join the oldest of criminology. Predictive digital systems would make it possible to identify the potential criminal, based on the criteria of dangerousness of individuals, i.e. their possible actions in the future, and not on the evidence of guilt, which requires proof of the facts committed. In the same way, morphological characteristics should make it possible to identify the born criminal, according to the father of Italian criminology, Cesare Lombroso.

III - Maintaining the irreducible singularity of the governed

9. The risk our society faces is to be governed by technological choices that are not subject to any democratic debate. Since the standard is integrated in real time into the computer code of the platforms we use on a daily basis, our behaviour is determined without having been preceded by any social and political dialogue. However, it is the decision-making process that conditions the legitimacy of the social body's membership. Therefore, the question of democratic deliberation is more than ever raised. The ability to deliberate and to make one's voice heard as a citizen, i.e. as a “subject of law”, is being undermined by this “Coup Data”. Contrary to the law, algorithms do not consider people as subjects of law, but apprehend them as fragments of data belonging to a vast flow that must be represented, calculated, and modelled.

10. Let us beware of being determined by the data. Let us guard innocence from its presumption, chance from its virtue, creativity from its freedom. We must be careful of this, at a time when the cold, efficient, objective and fluid governance of algorithms is on the horizon, to be able to collectively create a common imaginary into which to project ourselves. Because what is characteristic of man is precisely this capacity for belief and imagination. This is what is at stake. If the feeling that everything was played out before one had even lived and if everyone's life was locked up in systems of selection or even discrimination, then adherence to democracy would collapse. The challenge that artificial intelligence poses to us is precisely the restoration of humanism in our societies, where it is weakening, where it no longer exists, or is in the process of disappearing. Paradoxically, this is man's good fortune. The challenge before us is to promote the irreducible singularity of each person. To build the conditions for a Digital Democracy, so as not to suffer the “Coup Data” but to appropriate it.

Conclusion: Promoting a European approach to the digital world

11. To understand the impact of data on our society, we have therefore created the analysis platform www.coupdata.fr. Its objective is multiple: 1) to promote the European vision of digital by highlighting the vision of a new generation of pioneers; 2) to propose public policy recommendations for the construction of a digital Europe; 3) to answer operational questions that entrepreneurs are asking themselves so that the law is no longer seen as a brake on innovation but as an opportunity; and 4) to defend individual freedoms in the digital age.

The contents are dedicated to a specialist (“3 Questions To...”) or to an analysis of the world through the prism of data (“Kaleidoscope”). Among those interviewed are digital and tech experts.

12. It is above all a question of governance and sovereignty. Both at the level of individuals, who are wondering how to keep or even regain control over their data, and at the level of institutions. A succession of landmark cases: Snowden, Cambridge Analytica, Schrems... Examples are multiplying: from the inflation of cyber-attacks, debates on the hosting of health data, the application of competition law to the digital giants, to the responsibility of platforms for third-party content, to the possibility or not of carrying out data transfers to States that do not have a legal framework for the protection of individual freedoms and fundamental rights. The “Coup Data” can be suffered, if it comes down to being summarised and governed by the simple aggregation of our data, or on the contrary constitute a formidable responsibility to regain control over our data. This requires, in particular, acculturation and digital literacy. Such is the ambition of this approach: to promote, through a multidisciplinary approach, a critical and constructive relationship with the subjects of digital society.