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Law, code and exploitation

Originally published: Marxist Sociology on September 8, 2021 by Aitor Jiménez (more by Marxist Sociology)  | (Posted Sep 10, 2021)

By the end of April 2020, the coronavirus epidemic outbreak was reaching millions. Thousands were dying daily. Nearly one third of the worldwide population was experiencing different degrees of forced quarantine. The productive system was forced to stop, restaurants and bars were closed. The streets were emptied. The scenario was described as apocalyptic and dystopian by the media. However, the same scene could be seen in Argentina, United States, Spain and France: on one side of the street a Deliveroo courier delivering a take-away order on a bike, wearing nothing more than a face mask and a pair of plastic gloves for protection. On the other side, military troops wearing biohazard suits, building up emergency campaign hospitals, trying to relieve the overwhelmed intensive care units of the hospitals unable to attend the flood of contagion. How did this come to be? Why were some of the most vulnerable workers, with zero-hour contracts, paid by the piece, no political rights, and no unemployment benefits thrown onto the streets?

As it has been shown in a plethora of contributions, digital capitalism has accelerated the precarisation of work, eroded worker’s rights, expanded previous forms of exploitation and developed new ways of surveilling and controlling workers. If you are reading this, it is likely that you are a scholar. Thus, it is likely not only that you have experienced declining salaries, lay-offs and the disastrous neoliberal management of a common good, but that you, too, know what is like to undertake your duties via a corporate-owned platform you don’t fully understand. You have experienced what it feels like to rely on private assets owned by unscrupulous capitalists probing you and your student data, merely to justify the public provision of education. You know what it is like to surveil and to be surveilled, to be rated for the time you spend online. You know how it feels to pay for the electricity, computers and internet necessary to teach, to research, to learn. In other words, most of us have already experienced work under digital capitalism.

One of the most widely studied but less understood phenomena related to digital capitalism has to do with worker’s exploitation. It is not that intellectuals have failed to explain, for instance, how workers are tyrannically oppressed in massive logistical complexes such as the one owned by Amazon in Bessemer Alabama. Nor is it the case that they have failed to describe how new technological developments are leading to forms of algorithmic exploitation to remotely control workers. Even legal scholars (yes, they have soul and heart too) have demonstrated how, in recent years, a massive portion of the global workforce went back to a nineteenth-century piece-work mode of production where workers bear all the risks while enjoying a lean and decreasing share of the wealth they produce. Still, there is something else, something wider, bigger, something that points not to a worsening of the labor conditions but to the rise of a new mode of production with its own rules, logic, ways of operating and of course, with its own set of terrible consequences for the working class.

Today the owners of the means of production are not only vampirising the working-class, they are also the legislators of its working conditions. Of course, if you are a Marxist, this probably sounds familiar. After all, to a lesser or greater degree there is a strong (for some even causal) connection between the economic base (that is, the totality of the material relations of production) and the political and legal superstructure. Even Pashukanis’ more sophisticated analysis states that the legal form premises are rooted in the material relations of production.  But I am not talking here about some form of abstract or indirect control of the working class’ labour conditions.

What I mean is that the owners of algorithms, that is, the means of production of the digital era, are also the owners of the code by which the working conditions of the digital proletariat are established. The code, which is the set of commands and symbols that enables the functionality of companies such as Uber, also regulates the behavior of the workers. Algorithms have become the instruments by which digital capitalists control the rhythm, schedule, and objectives of production. Capitalists use these new technologies to surveil and control workers. Algorithms are used to reward, punish, hire and lay-off workers. In other words, algorithms have become the fundamental technological element of the exploitative sociotechnical system upon which the digital capitalist mode of production stands. Algorithms are, at the same time, the machinery of a sophisticated factory and the self-enforcing automated regulatory framework running it.

As I argue in my recent article, this won’t only affect so-called gig workers, as you might well have already experienced. Most of us will become a part of the digital proletariat, whether we work in agriculture, hospitality, administration, mining or education. I am not talking here about robots, automation, or futuristic blah blah blah. What I argue is that capitalism is doing just what it did in the past: using the latest technological developments to perfect exploitation no matter the human, social and environmental costs. We are facing something extraordinarily challenging: the rise of a capitalist form of algorithmic regulation. Algorithms – one of the key elements of the digital capitalist system of production – are at the same time the means of production and the legal code enabling worker’s exploitation.  Even under the most progressive liberal framework, relations of production will still be determined both by the ownership of the means of production and by the capitalistic code in which they are written.

This article summarizes Aitor Jiménez, “Law, Code and Exploitation: How Corporations Regulate the Working Conditions of the Digital Proletariat,” Critical Sociology 2021.

Aitor Jiménez is a sociologist, lawyer and activist. He joined the ADM+S Centre in May 2021 as Postdoctoral research fellow in Data Civics, Rights and Ownership for Automated Decision-Making, at The University of Melbourne.

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