Legal fixes will never slow down big tech – platforms have always situated themselves within the confines of the law and merely circumvent new regulations in order to concentrate power even more amongst the neoliberal elite

Even closer inspection of platform entity behaviour reveals more subtle techniques of design used to control user subservience. This includes the use of dark patterns, or ‘instances where designers use their knowledge of human behavior (e.g., psychology) and the desires of end users to implement deceptive functionality that is not in the user’s best interest’.157 Day and Stemler define dark patterns as ‘subtle design choices in digital interfaces intended to elicit certain behaviours from users’.158 Harry Brignull defines dark patterns as ‘tricks used in websites and apps that make you do things that you didn't mean to, like buying or signing up for something’. 159 Dark patterns might include, for example, emphasising in bright colours an ‘Accept’ option in an early and prominent position and making the user click through a design maze to decline that option. Brignull warns that ‘when you use websites and apps, you don’t read every word on every page - you skim read and make assumptions. If a company wants to trick you into doing something, they can take advantage of this by making a page look like it is saying one thing when it is in fact saying another’. 160 Brignull lists a number of examples on the website darkpatterns.org such as Privacy Zuckering (named after Facebook CEO Mark Zuckerberg) where you are ‘tricked into publicly sharing more information about yourself than you really intended to.; and Disguised Ads which are ‘Adverts that are disguised as other kinds of content or navigation, in order to get you to click on them’.161 Facebook’s settings provide an example of a dark pattern. Here, users can access a ‘Privacy Checkup’ which gives users limited options to control the secondary usage of their data.162 Users are given an illusion of control. Here, users can ‘remove’ apps and websites they have used Facebook to log into and can disallow recognition of their face in pictures uploaded to Facebook. Perhaps counterintuitively, an additional module titled ‘your ad preferences on Facebook’ allows users to disable the provision of specified information, such as ‘relationship status’ to advertisers. However, users can add additional information to their Facebook profiles such as their ‘hometown’ and ‘city’ and there is no way to disallow the provision of such information which falls outside the categories specified by Facebook. Therefore, users’ ability to control the secondary use of their data is not straightforward: they are required to access multiple modules and their ability to control the secondary use of their data is incomplete.163 Further, there is no option which simply disallows third party access to user data.164 Although the presence and accessibility of these limited user-controls gives the outward perception of transparency, a genuine sentiment to empower users is lacking. These controls do not give users a functional and comprehensive way to control how their data is used by Facebook and shared with third parties. So far, we have discussed the way that the platform entities have used the tools or technology they control to accrue and exert power over users. This form of mass social control or power has led to enormous economic returns for the platform entities. This economic power has transposed into greater market and political power.165 Law is also a technology.166 The platform entities have also shown themselves to be adept at using law to their advantage, like so many of the technologies over which they have direct control. The next part discusses the way that platform entity power has evolved in a sociotechnical environment governed by laws. 4. Law and Power Law is a technology, that, like a platform or an app can be used to effect outcomes.167 Platform entities have been able to wield the technology of law, in the same way that they have been able to manipulate their own technologies as discussed in Part 3. Law is just another means to an end. Kapczynski noted that ‘one of the great challenges of understanding the new concentrations of corporate power and the informational age is mapping the laws that help sustain them, precisely because this is a domain that is commonly seen as operating beyond law.’168 The best lawyers in the world advise the platform entities. Their terms of service and privacy policies read like masterclasses in legal drafting. Consequently, platform entities operate largely within the parameters of existing law. But that is not to say that they have not stretched the law and the norms that underpin it to suit their purposes. In shaping their business models in the way they have, the platform entities have normalised the subversion of long-held understandings of freedom of contract, and equality of bargaining power in contractual dealings, assumptions of rationality, full and relevant information, and efficiency in economics, and consent in privacy. Platform entities have applied, worked around, created, and shaped laws to suit their purposes, and their global reach and corporate and entity structures thwart local accountability. Again, this is not new behaviour. Cohen discusses historical large scale Polanyian countermovements to shifts in political economies underpinned by legal systems.169 Barker too reminds us that: The dawn of the new industrial age in the nineteenth century was as much a power struggle between the aristocratic and industrial classes … as it was between a conception of contract “as fairness” and contract as “laissez-faire, free market exchange.170 One aim of law is to circumscribe power. For example, employment law, sale of goods law, and consumer law are all, in part, designed to rebalance power imbalances between employer and employee, vendor and purchaser, and supplier and consumer, respectively. Tort law gives rights to those injured by civil wrongs. Barker reminds us of the power inherent in laws such as misrepresentation, duress, and undue influence that ‘operate … in instances in which one person compels, deceives or influences another in ways that bring about disadvantage to the one and advantage to the other’.171 Yet laws also allow the powerful to exist in the first place. Deakin et al argue that ‘law is not simply an expression of power relations but is also a constitutive part of the institutionalized power structure, and a major means through which power is exercised’. 172 Property laws allow those with property to exclude those without it. Similarly, trespass protects those with property (in either chattels or land) from intrusion on their property. Law also creates power. Barker argued that ‘all modern private law is an expression of the power of the state—a system of rules pronounced by either judicial, or legislative authority’. 173 Public laws such as constitutional and administrative laws also establish power. Laws establish governments, police and defence forces, and other entities, that are given more powerful positions than the average citizen. Using substantive law in the way set out in this paper is not the only way that powerful entities operate within the law and legal system. An examination of the procedural side of law also requires some examination, but a full analysis is outside the scope of this paper. Platform entities, with their unlimited financial resources can control legal processes by hiring or conflicting-out the best lawyers, running multiple technical points that delay processes and add expense, and settling when necessary to avoid creating precedent law that might inhibit similar future conduct Finding cases that allow courts to make judgments that change the law is difficult when a large percentage of cases settle before they reach a final verdict.174 This paper does not consider the tactical use by platform entities of the judicial process.. Setting onerous dispute resolution mechanisms that inhibit direct access to courts and setting inconvenient jurisdictions to govern the applicable law in contracts are also effective ways of curtailing dissent. Each of these issues as they relate to platform entities will require further research, but, at another time. The balance of this Part discusses some of the ways that the platform entities have interacted with law in four contexts. First, where laws exist platform entities have been able to situate themselves within the law and even use the law to their advantage. Second, where law exists, but applying it would require some novel argument for it to apply. Third, that the law exists and applies, but it is simply not enforced for several reasons that we discuss. Fourth, as Zuboff claims, that the platform conduct does not neatly fit within the confines of existing law (or law does not exist). 4.1. Law exists and Platform Entities Comply Zuboff asserted that ‘Google’s freedom strategy was its ability to discern, construct, and stake its claim to unprecedented social territories that were not yet subject to law’.175 She referred to the ‘lawlessness’ of surveillance capitalism by reference to Arendt’s description of the plundering of Africa and Asia in the mid-nineteenth century: ‘The secret of the new happy fulfillment was precisely that economic laws no longer stood in the way of the greed of the owing classes’. 176 Zuboff repeats the themes of the platform entities in response to attempts to regulate their conduct: … that technology companies such as Google move faster than the state’s ability to understand or follow, that any attempts to intervene or constrain are therefore fated to be ill-conceived and stupid, that regulation is always a negative force that impedes innovation and progress, and that lawlessness is the necessary context for “technological innovation”.177 However, as Cohen points out, platform entities entered a world abounding in law. 178 Cohen argued that the public domain in raw materials applies to the taking of raw data.179 She noted that ‘preexisting legal constructs relating to entitlement and disentitlement have a way of filling in the empty spaces that surround new technologies and business models’.180 But, as Cohen acknowledges, ‘Power is both pragmatic and protean, defying efforts to describe its workings and cabin its reach. Given rules of engagement, it seeks out gaps; confronted with prohibitions, it finds workarounds’.181 When referring to lawlessness then, perhaps Zuboff was referring to the gaps in existing laws such as competition law, consumer law, and privacy law. The failure of these laws to fully respond to the conduct of platform entities gives the impression of lawlessness. While the platform entities operate between these gaps, the sobering reality of, and the frustration surrounding, platform entities is that much of their behaviour is legal (or is not (yet) illegal). The 2019 ACCC Report into the market power of digital platforms in Australia gives concrete examples of the power held by these platform entities over competition in the media and advertising services markets, and the impact on consumers and advertisers.182 The ACCC Report illustrates the way that platform entities have been able to operate in accordance with, among and between various laws. Two laws that have proven to be very effective and beneficial for the platform entities are contract and privacy law.