Capture in Canada

WHEN IT COMES TO BIG TECH’S influence with policymakers and regu­lators, the stakes are extra­ordinarily high. In some of the areas in which tech companies operate there is no regula­tion or historical precedent for framing their offerings or their business models. In other areas, tech companies have upended traditional business models in such a way as to make current regula­tion inadequate or obso­lete, whereas other forms of regu­lation are adequate and yet tech companies do not abide by them.

These companies are now among the world’s most wealthy and powerful in the history of capitalism, with tenden­cies toward monopolistic beha­viours that have led to an ongoing wave of investigation and litigation from governments and civil society.

The stakes are high because tech com­panies’ impacts and interests, whether current or potential, now reach into nearly every corner of citizens’ lives. And they present a unique challenge for regulation, as their activities can hardly be contained within a single portfolio, but rather extend across the purview of numerous government departments, commissions, and policy areas, including but not limited to: consumer and citizen privacy; antitrust and competition; innovation policy; labour; online harms; digital taxation; heritage and culture; copyright law; and immigration policy.

The Regulatory Capture Lab’s initial research is focused on two areas of capture: The Revolving Door and Academic Capture.

Research on the revolving door will track the ongoing shuffle of actors between the Canadian public sector and Big Tech, and research on academic capture will look at how Big Tech’s support for academia risks compromi­sing the integrity of scholarship.

There are other areas of interest, such as journalism and media capture, that will be worth studying in the future.

As we track the underlying mechanisms of regulatory capture in Canada, we encourage other journalists and academics to use our work as a starting point to look more closely at capture and how it plays out in contested regulatory spaces.

To start, here are two important areas worth investigating further:

URBAN MOBILITY – From rideshare services to autonomous vehicles that move through urban spaces kitted out with a panoptic array of technologies, Big Tech has a massive vested interest in the regulatory landscape of how people navigate “smart” urban environments.

Policy decisions made now in areas such as data governance, gig worker rights, AV permissions, and technological procurement will have ramifications for a long time to come.

One of the clearest examples of how private interests are inscribed into public policy was when Uber’s “Flexible Work+” labour policy made its way almost verbatim into Erin O’Toole’s 2021 federal election platform for the Conservative Party of Canada. This comes as no surprise since Uber lobbyist Dan Mader was also serving as O’Toole’s director of policy and scripting.

PRIVACY – The indiscriminate collection of data is at the core of Big Tech’s business model. This is why privacy regulation is critical to companies operating in a data-driven economy. It’s why Big Tech spends so much effort trying to influence privacy policy.

Those efforts were on clear display in the Liberal government’s long awaited update to privacy policy, introduced in November 2020 as the Digital Charter Implementation Act. If Facebook, Google or Amazon could write privacy policy, it would read like the Digital Charter does. Not only has the government expanded tech companies’ rights to track citizens, it has also stripped away pre-existing rights for children and vulnerable persons. This is perhaps no coincidence considering Facebook and others are currently trying to develop new tech products for kids.

As regulatory capture happens, policy and regulation are oriented away from the public good and toward private interests. The consequences of capture can be seen, for example, in how the energy and mining sectors have been historically successful at circumventing, undermining, or watering down environmental policies and protections. Over time, the capacity of governments to enact and enforce policy in the public good is eroded.

The “revolving door” only needs to spin once for it to work, especially in sectors and policy areas opened up by Big Tech and when the government lacks the institutional or practical knowledge to address such areas.

In a recent paper on the Canadian revolving door by Stéphanie Yates and Étienne Cardin-Trudeau, a key finding was “that ‘cultural capture’ can occur when new public officers come from the same private sector now within their purview. Based on public officers’ allegiance to their former industry, lobbying is de facto exerted, ‘from within’.” This invites potential conflicts of interest within the government itself.

The scale and outsized influence of Big Tech distorts the playing field for smaller domestic competitors, putting them at a considerable disadvantage when it comes to having their voice heard in government and with regulatory bodies.

There is an opportunity for Canada to establish its own framework for transparency when it comes to partnerships between Big Tech, academics, and universities, underscoring the necessary independence and integrity of academic research. This work is needed before a patchwork of unsatisfactory, self-policing norms settle into place.