A School For Digital Marketers In The Era Of ‘Surveillance Capitalism’

This original appeared on Huffington Post.

Shortly before Christmas, I posted a short screed about the moral mess that digital marketers have gotten themselves in. In this new era of big content and fake news, we’ve lost our moral authority—if not just our moral compass—to counsel brands on what to do. Why? Because for years before the dark Fall of 2016, the ad tech industry had been already eroding trust among people on the Internet by finding more and more clever ways to stalk people. I asked if the time had come for a new Cluetrain Manifesto, the popular 1999 treatise that admonished marketers that a new day would soon arrive when the customer would be in control.

My question got an answer—from Doc Searls, one of the authors of the Cluetrain. But the answer was not what I expected. According to Doc, who is still fighting the good fight, the work of the first Cluetrain is not yet done.

From CRM to VRM

I caught up with him last Friday afternoon (he from his home in Santa Barbara, me from my office in Boston). On the table for discussion was a roadshow that I was in the middle of planning and whose mission is to educate marketers on the new art, science, and ethics of digital engagement. He liked the overall concept, but we spent most of the hour imagining what the curriculum might be like. We took the time to review what he’s been doing the last ten years—the last time I had actually spoken with him—trusting that this would provide a clue.

First there’s the work he’s been doing to socialize the concept of VRM, a.k.a. vendor relationship management. I remember hearing about this, for it was just little more than a decade ago that Doc first positioned VRM as companion to CRM (customer relationship management) and hasten the arrival of the Customer in Control. The idea has attracted a global community of business leaders, developers and academics, and a spiritual home at Harvard’s Berkman Klein Center, where Doc is a fellow alumnus, which which hosts Doc’s ProjectVRM. But its impact is being felt mostly in the EU, where privacy laws are a lot more customer-friendly. If you say VRM at a tech conference in Paris, it’s likely that people will know what you are talking about. If you say it over here, it’s more likely people will think you are talking about a tech category that has emerged in several B2B markets like cybersecurity.

But as Doc noted in a blog post last Fall, VRM as conceived for human beings is a concept that’s in motion, accepted by many as a thing that is bound to happen. “Phase Two is about making it happen, by betting our energies on ideas and work that starts rolling downhill and gaining size and momentum.”

Reapportioning the unfair lion’s share

This brings us to the second thing that has been occupying lots of Doc’s time. As a thought leader who first rose to prominence as the editor of The Linux Journal (an important vehicle for idea-making in the early days of open source), Doc has used his pen as a sword in some of the consumer-protection battles that are still being waged in the tech world. In his 2012 book, The Intention Economy, he gives airtime to one of the most persistent anti-consumer practices that has only gotten worse in the smartphone era: the use of so-called “contracts of adhesion” in technology sales and service agreements.

If you don’t know these contracts by name, you know them from experience. They’re the long-winded legalistic paragraphs in seven-point type—and that nobody ever understands or takes time to read—in insurance policies, car-rental agreements, and, yes in the terms of service that you and I all need to sign for the privilege of using social media networks, e-commerce sites, and smartphones. In the tech world, they’re known pejoratively as clickwrap and browsewrap, because they seemingly add little to the “product” (which in the analog world sometimes comes with shrinkwrap) and are ignored and discarded as quickly as soon as we can. American legal scholars—beginning in 1919, with an article in The Harvard Law Review—began calling them contracts of adhesion because the weaker party has no say in the drafting of the “agreement,” and instead is expected to simply adhere to it; she can take it or leave it. But they are part of a larger class of instruments known as leonine contracts, which are sometimes unenforceable because they can be “unconscionable.” The word “leonine” may have been an allusion to the Aesop fable where the lion finds a clever argument to take all the spoils from a hunt after agreeing to share them with his animal friends. The argument: you can disagree with the argument. But you die. (Hence the phrase, “the lion’s share.”)

One thing that’s interesting about Doc’s ruminations on these inequities in Internet commerce is that he is looking for technology responses to better arm consumers; that’s the whole point about VRM. But for me, what’s even more interesting is that he’s appealing to longstanding principles in democracy as the first line of defense against “surveillance capitalism,” the term coined by Shoshana Zuboff that well describes the credo of many digital marketers today. In the legal world, there is a doctrine that jurists have used to counter the effects of contracts of adhesion. It’s called contra proferentem, and it allows the court to interpret ambiguous or inscrutable terms in such contracts against (contra) the party that writes (proffers) the language. But the doctrine was conceived during the industrial age, and we have neither the legal nor social remedies to counter the new contracts of adhesion that permit companies to stalk and sometimes sell the information they gather to brands willing to turn a blind eye.

Doc and I concluded our talk confessing that we were both ready, in our own way, to do something about this. But we both admitted that the solutions were not yet within reach. Instead, it was time do some collective study, and go back to school, so to speak, and get an even better lay of the land to devise sustainable technology, social, and policy solutions. I suspect there are many others—not just marketers—who feel this way, and if you’re one of them please get in touch. I’ll soon be on the road to meet like-minded people, and I hope speak with as many as possible.

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