Jingxian Zeng presents a comparison of Apple’s battles with Facebook and Tencent over advertising data tracking to argue that current notions of privacy law rest on the misconception that the power of digital platforms is derived from their control over data, rather than their control over the infrastructure that collects and processes data. The article targets the assumption behind the mobilization of data protection and privacy to contest platform power: the enormous power of platforms derives from their control over data such that granting individuals rights to their own data is enough to contest platform power. This approach ignores a fundamental source of platform power—control over the digital infrastructure that enables the collection and processing of data. Failing to account for this aspect of platform power runs the risk that data protection and privacy will be mobilized by platforms to safeguard their “walled gardens,” thus running against the “public” expectation of empowering individuals vis-à-vis platforms. The differing implementation of Apple’s privacy-preserving policy in the U.S. and China, through Facebook and Tencent respectively, offers a vivid illustration of the significance of infrastructural control.
This paper was published by the NYU Journal of Legislation & Public Policy. It originated in the Guarini Colloquium: Regulating Global Digital Corporations convened by Thomas Streinz and Joseph Weiler in Fall 2022.
