
Individual reflection by Carlos Suberviola (scroll below).
By Carlos Suberviola
Cornell Tech
In the realm of technology law and regulation, the rapid evolution of digital markets
and artificial intelligence (AI) presents unprecedented challenges. At a recent seminar led
by Olivier Sylvain, a distinguished professor of Law at Fordham University, a compelling
case was made for reevaluating our regulatory approaches to address these challenges
effectively. Titled Beyond the Consumer Sovereignty Model: Regulating for Asymmetric
Market Power, the seminar shared insight on the inadequacies of existing frameworks
and proposed a shift towards more equitable regulatory strategies. This essay endeavors
to dive into Sylvain's insights into a coherent narrative, advocating for a paradigm shift in
how we regulate the digital economy.
The foundational premise of Sylvain's argument is the critique of the consumer
sovereignty model, which has long underpinned regulatory approaches in digital markets.
This model posits that consumers, equipped with the necessary information, can make
rational decisions that reflect their best interests. However, as Sylvain articulately points
out, this framework is profoundly inadequate in the context of contemporary digital
markets characterized by asymmetric power dynamics between consumers and tech
giants.
A key issue identified is the reliance on consumer consent without ensuring a
genuine understanding of the terms agreed upon. This practice has led to a widespread
phenomenon of forced consent and information asymmetry, where consumers are
presumably in control but in reality are far from it. Sylvain's critique extends to the
mechanisms of commercial surveillance and data collection practices, exemplified by
cases against companies like Snapchat and Vizio, which have misled consumers or
collected data without full consent.
The seminar underscored the necessity of moving beyond consent-based models
to tackle the structural power imbalances inherent in digital markets. Sylvain advocates
for regulatory frameworks that mandate transparency from companies about service
changes and establish protections that do not solely rely on individual consent. This
approach aligns with the European Data Protection's stance, suggesting a regulatory
model that ensures certain protections regardless of consent, thereby addressing the root
causes of information asymmetry and forced consent.
Sylvain's analysis extends to international regulatory perspectives, contrasting the
European Union's approach with other models, such as China's emphasis on technology
education. The discussion of the EU's AI Act, which introduces a risk-based liability
regime, highlights the shift towards addressing data processing risks through structural
regulation rather than placing the liability on consumers. This perspective is crucial in
moving away from the consent fatigue that plagues European consumers and towards a
model that prioritizes structural solutions over individual decision-making.
The seminar culminates in a call for a new paradigm that refrains from the outdated
consumer sovereignty model in favor of structural regulation. Sylvain's vision for the future
of technology regulation is one where the inference economy (our current state,
characterized by extensive data collection and processing) is governed by frameworks
that protect individuals through systemic means rather than relying on flawed
assumptions about consumer capability.
This approach necessitates a reevaluation of how privacy, data protection, and AI
are regulated, ensuring that these technologies serve the public interest within a
framework that guarantees accountability, transparency, and individual protection against
the excesses of market power. By advocating for a comprehensive regulatory strategy
that addresses both macro-level structural issues and micro-level consumer interactions
with technology, Sylvain presents a compelling roadmap for creating a digital environment
where innovation and free speech flourish within a context of equitable and effective
protection for all.
In conclusion, the seminar "Beyond the Consumer Sovereignty Model: Regulating
for Asymmetric Market Power" offers a critical and insightful reflection on the need for
regulatory reform in the digital age. Olivier Sylvain's thoughts provide a foundation for a
new regulatory paradigm: one that is better equipped to address the complex challenges
of asymmetric market power in the digital economy, ensuring a more equitable and just
digital future for consumers and society at large.
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