if data is labor, can collective bargaining limit big tech?

Numerous factors suggest the House Judiciary Committee’s antitrust report may not fundamentally reshape the digital landscape. The report ultimately failed to achieve genuine bipartisan consensus. Nevertheless, it’s remarkable how much agreement there was, across the political spectrum, regarding its core conclusion: major technology companies possess an unsettling degree of influence over American life.

The primary concern revolves around whether the proposed remedies address the root of the issue. It remains to be seen if strengthened antitrust enforcement can effectively resolve the challenges at hand – and whether public support can be sustained throughout the process. The idea that multiple, smaller versions of companies like Facebook would be preferable to the current situation doesn’t gain widespread acceptance.

There are valid reasons for this skepticism. Despite the acknowledged drawbacks, the advantages these platforms offer are largely tied to their immense size. We are concerned both by the extensive power these platforms exert over both those who supply them and their users, and by their restraint in using that power. However, it is precisely their substantial scale that makes their services appealing. Therefore, if regulators were to dismantle these networks, users would likely gravitate towards the platforms with the largest reach, ultimately leading to renewed consolidation within the industry.

This doesn’t imply that these platforms lack excessive power or that they aren’t causing societal harm. It simply means they function as essential infrastructure. Consequently, the goal isn’t necessarily to make these technology platforms more fragmented, but rather to ensure they serve the public interest. We require democratic, rather than purely market-driven, mechanisms to govern how they exercise their influence.

Typically, when an entity is recognized as infrastructure, the common response is to advocate for nationalization or regulation. However, current circumstances give us reason to doubt our political system’s capacity to effectively manage this task. Even assuming an ideal government could competently address a challenge as complex as overseeing 21st-century digital infrastructure, our current government likely cannot.

This situation seemingly presents a no-win scenario, contributing to the prevailing sense of discouragement. However, there’s an alternative solution that appears to have been overlooked. Historically, labor organization has provided a means for a wide range of stakeholders, even those with limited individual power, to exert control over powerful business operations. Why isn’t this being considered?

An increasing number of scholars, technologists, and commentators are embracing the concept that “data is labor.” This perspective posits that the extensive data generated through our interactions with the digital world constitutes a legitimate form of work – and that we should have considerably stronger rights over it than current laws provide. Collective bargaining is central to this concept. The reason markets are currently failing (to the advantage of Silicon Valley companies) is that individuals are attempting to negotiate independently, when the inherent nature of data means it invariably affects and involves the interests of many.

While this may appear to be a complex and difficult problem, prominent thinkers are already developing legal and technical solutions.

In a sense, the sheer size of these tech companies may not be inherently problematic – the issue lies in the power that size affords them. But what if Facebook were required to negotiate with large coalitions representing the data interests of ordinary people – potentially paying substantial fees, or including these representatives in its decision-making processes – in order to gain the right to utilize its users’ data? This would redistribute power appropriately, without diminishing the benefits of large-scale platforms. It represents a future worth striving for.

What is the most promising path forward? The answer lies in enabling collective bargaining through data unions. Data unions would serve as a necessary counterpart to the information-gathering activities of big tech companies. By mandating that these companies negotiate with data unions authorized to represent their members, both of the issues that have allowed these tech giants to accumulate excessive power and negatively impact society would be resolved.

Labor unions only achieved significant influence following the passage of the National Labor Relations Act of 1935. Perhaps, instead of expending political capital on a protracted and potentially futile effort to break up the tech giants, we should concentrate on creating a 21st-century equivalent of this landmark legislation – legislation to safeguard the data rights of all citizens and establish a responsible legal framework for data unions to advocate for the public interest from the ground up.