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Fast food, Facebook and the "deep capture" of democracy: It didn't start with Cambridge Analytica

Law professor David Yosifon on how decades of corporate manipulation paved the way for the Facebook scandal


Paul Rosenberg
April 8, 2018 4:00PM (UTC)

The Cambridge Analytica scandal is a curious beast: There was undeniable wrongdoing that, according to experts, likely had little impact on the election outcome. Yet the fact that personal Facebook data was sold off to a nefarious advertising firm has stirred up well-founded fears on multiple fronts: violations of privacy, corporate lies, billionaire political meddling -- the list goes on. Whether any of that actually decided the election is beside the point: It seems to represent the new normal, and the new normal is rotten through and through.

But there’s another well-founded fear that’s not just of this moment. People feel intimately violated because they’ve been manipulated, rather than informed or persuaded. There’s nothing new in that. We are being manipulated, constantly, all the time. If this shocks us out of our usual apathy on that question, it could actually do some good.

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"Psychographic micro-targeting" may sound shiny and new, but it’s as retro as "Mad Men" at its core. We’re being targeted by advertising — the plain old mass-market kind, with or without all the demographic refinements, which themselves predated the most recent wave of debatable psychometric fine-tuning. Red-flag examples of this manipulative power are products with high health and mortality costs, such as tobacco and junk food. Advertisers of both have been highly skilled in getting millions of people to act against their own interests, all the way to the grave in many cases. In their defense, they’ve got something else to sell us: the myth of autonomy — the claim that individual consumers freely chose to use their products, and if they died because of those choices, that’s on them. Neither the companies who made the products nor the advertisers who helped sell them (in this reading) are the least bit responsible.

David Yosifon has a different point of view, which can help make sense of all the above: how people are manipulated, usually without suspecting it, and how powerful corporations manage to keep it that way. It’s not so much a story of good guys and bad guys as a story about human nature, cognition and behavior — and two different ways of understanding those things, known as "dispositionism" and "situationism."

Yosifon is a professor at Santa Clara University School of Law, and author of "Corporate Friction: How Corporate Law Impedes American Progress and What to Do About It," forthcoming from Cambridge University Press in May. He’s been thinking about these issues for more than a decade, with law review articles like "Broken Scales: Obesity and Justice in America," co-authored with Adam Benforado and Jon Hanson, and “Resisting Deep Capture: The Commercial Speech Doctrine and Junk-Food Advertising to Children.” Underlying both were ideas developed in “The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture,” co-authored with Hanson.

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They are dense and complex texts, and his thinking has evolved in the intervening years. But the fundamental ideas are not that difficult to grasp.

“In my work with Jon Hanson, we described ‘dispositionism’ as the widespread human tendency to overstate the role of individual disposition, character and personality traits in explaining human behavior,” Yosifon told Salon. It’s a deeply ingrained way of thinking, reflected in how many words we have to describe dispositional differences, and formalized in everything from Aristotelian character ethics to the “rational actor” at the center of most mainstream, modern theories of law and economics.

It ain’t necessarily so, as Yosifon went on to explain. “A great deal of research in social psychology and other social sciences has shown that ‘the situation,’ the social context -- the way that information is framed or made available to us -- is more influential than our common sense leads us to believe,” he said. “This reality leaves us more vulnerable to manipulation than we commonly realize, as those with control over the context of our decisions can shape our decision-making in ways that we do not see, in ways that we will attribute to our privately ordered preferences.”

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As the Burson-Marsteller PR firm put it on its home page more than 20 years ago, "Perceptions are real .... They color what we see ... what we believe ... how we behave. They can be managed . . . to motivate behavior ... to create positive business results." The quote appears at the beginning of “The Situation.”

You Don’t Know Why You’re Hungry — Ever

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Situations — and the surprises they hold in store for us — are not all external, however. In “Resisting Deep Capture,” Yosifon wrote, “We humans tend to believe that our experience of hunger is directly related to our body's imminent need for food. We eat because we are hungry, and believe we feel hungry because we need to eat. But we are mistaken.”

That’s a very arresting statement. It’s like being told that the sky isn’t blue.

But of course the sky isn’t blue, not the way a blueberry is. There is no blue pigment up there, which magically turns orange at sunset and then black at night: it just looks blue because of how light bends, because of the context in which we see it. Because of the situation. Something similar is going on with eating and hunger. As Yosifon explained in our interview, what bends our perceptions is our own bodies and the fact that we’re embedded in them.

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“In my work with Jon Hanson, we refer to the influence of ‘interior situation,’ sex drives, hunger drives, deep motivations that influence our thinking and behavior in ways that we do not see, and instead attribute to our more salient sense of our rational, persistent, dispositional self,” Yosifon said. The Big Five personality traits that Cambridge Analytica tried to use in micro-targeting can be seen in these terms as well. So too can the heightened "threat sensitivity" of American conservatives, which I’ve written about before.

“This interior situation derives from our evolutionary history,” Yosifon continued. “Throughout most of human history, food scarcity has been a persistent problem. Our bodies developed in such a way that they can store food for future use, in body fat. Our eating systems developed in such a way to cause us to eat as much food as possible when it is available.” This is all part of our interior situation, to which we are normally oblivious — except for how it bends the light around us.  

“The psychological experience of this is a persistent feeling of hunger, which we experience as the body telling us we need food for now" Yosifon continued. "We are not consciously storing food in our fat cells for future consumption. We feel hungry now, and think we are eating to satisfy that present need. But really the body is tricking us into planning for the future.” For countless millennia, this made perfect sense. We might not have survived otherwise. At this point in human history, however, Yosifon says, "it's planning for a future that never comes, because in our modern condition food scarcity is, for most people, not really a problem.”

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It’s a good news/bad news situation. “This is a great thing in the grand scheme of things — making starvation rare is a great achievement of human civilization — but our eating system is not well matched to the current situation,” Yosifon said. Where things get really sticky is in the realm of corporate governance, which makes the bad news worse. Corporations are supposed to pursue profit, first and foremost. This is known as the "shareholder primacy norm," and it has had any number of destructive effects.

“The problem that Hanson and I emphasize, for a legal and policy perspective, is that corporations, compelled to pursue profit by the shareholder primacy norm in corporate governance, have an incentive to exploit these unseen operations of the human eating system, in order to maximize their profits,” Yosifon explained. “Far from ameliorating our misunderstanding about the relationship between hunger and the need for food, corporations exploit it and exacerbate it, not to serve the consumer, but to serve the shareholder.”

There is a profound asymmetry between consumers and corporate advertisers. Consumers tend to overwhelmingly adopt the aforementioned "dispositional" view -- I'm making this choice freely, because it's something I need or want -- while advertisers are highly conscious of situational factors.

In “Resisting Deep Capture,” Yosifon noted: “Corporations will appreciate that we are situational characters because they have an enormous incentive to know, and a tremendous capacity to find out.” As a result, he said in our interview, “What's most noteworthy is that the market will tend to privilege firms that happen to stumble on business practices that exploit the hard-to-see truths about human psychology. They don't need to read the footnotes in psychology journals to find out the secret sources of human thinking and decision-making. Market pressures reveal these truths more efficiently that laboratory work ever could.”

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“One of the principal ways that the food industry has attempted to avoid responsibility for the harms associated with the obesity crisis," Yosifon has written, "is by arguing that even if over-consumption of its products causes obesity, it is consumers who are responsible for the outcome, since the industry is only responding to, and not inducing, consumer demand.” He noted that this promotion of a "dispositionist" view of consumer behavior is “is an extremely effective strategy” and an example of “deep capture,” another key concept in his perspective.

Deep Capture

“Economists have understood for a long time that one of the ways corporations pursue profits is by trying to influence legislation and other government regulation,” Yosifon explained. The concept of “regulatory capture” came out of this. “Hanson and I extended this insight to insist that corporations will also work to ‘capture’ a model of human decision-making that will cause consumers and government to think that market transactions express consumer preferences, rather than consumer manipulation. We call this ‘deep capture.’" (Emphasis added.)

As an example, Yosifon cited the corporate response to concerns about the obesity epidemic early in the 21st century. “Fast food companies worked aggressively to pursue legislation that would limit their liability,” he said. “They did not do so by persuading Congress that such liability would be harmful to their shareholders, which was their true motivation. Instead they promoted the idea that the health consequences associated with junk food consumption were a matter of ‘personal responsibility’ and that consumer weight gain, if any, resulted from personal choice. Therefore there was no need for regulatory intervention.”   

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The fast food industry provides a vivid example, but it’s only one. In “Broken Scales,” Yosifon and his co-authors write:

This article is not so much about the scales we use to measure weight, but the scales we use to infer causation and assign responsibility -- including the scales of justice. Ultimately, the problem we face is not obesity itself. Obesity is only a symptom of the problem. ... Our real problem is that we have an extremely difficult time seeing and understanding the role of unseen features in our environment and within us and too readily attribute responsibility and causation to the more obvious "personal choices" of the obese.

Instead of looking at how we eat, we need to look at how we think.

The logic involved applies across the corporate sector, to Facebook as well as McDonald's. In “The Situation,” Yosifon and Hanson write:

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The most basic prediction of the “deep capture” hypothesis is that there will be a competition over the situation (including the way we think) to influence the behavior of individuals and institutions and that those individuals, groups, entities, or institutions that are most powerful will win that competition. …

No institutional actor controls as much wealth in so concentrated a fashion in our society today as do corporations and those individuals with an important stake in promoting the power of corporations. Thus, valuable resources (including influence over the situation) tend toward those with the greatest ability to pay – that is, corporations.

While corporations compete against each other for market share, they also have powerful shared interests:

Insofar as each corporation is devoted to the single goal of profit maximization, they are, even as they compete in the marketplace, collectively committed to a uniform regulatory end: the creation and maintenance of a world that maximizes profit opportunities.

So deregulation and "dispositionism" go hand in hand, maximizing profits along with the illusion of celebrating individual autonomy. It only works because that autonomy is illusory. People don’t “freely chose” premature death. Cambridge Analytica wasn’t the first company to hack our perceived autonomy on a massive scale, only the latest.

So what can be done? In “Resisting Deep Capture,” Yosifon developed a legal framework for regulating commercial speech pushing junk food. In subsequent years, he has changed his thinking. “In my book, I insist that the better approach to reform is to change our corporate governance law," he said, "to require the boards of directors of our largest corporations to actively attend to the interests of multiple stakeholders in corporate decision-making, including consumers, workers, communities and the nation as a whole, rather than serving the shareholders.”   

In short, we need to turn the tables on corporations. We need to change the situation in which they find themselves.

Back to Facebook Again

What about Facebook and the Cambridge Analytica scandal, I asked Yosifon?

“Facebook continuously makes public statements committing and recommitting to behaving in a socially responsible way,” Yosifon noted. “But the truth is they can legally only do so, and will only do so, when it is profitable to do so. The problem is not with Marc Zuckerberg's conscience or with Facebook's morality. The problem is our corporate law. Corporate law makes the corporate soul, and the reform of corporate law can remake it in another image.”

Recognizing and responding to patterns of harm is not all that different in this case, Yosifon said:

I think people were once comfortable radically distinguishing between a concept of "addiction" as it operated in biological contexts, such as with nicotine, alcohol or maybe even sugar. What we are seeing in the design of habituation user interfaces in Facebook and Twitter is that information architecture can have effects that are just as powerful. The problem of "addiction" as a regulator or design problem in consumer markets cannot be kept as a back-water concept that is rarely relevant. It's a fundamental problem throughout the digital landscape and the modern economy.

How plausible is a widespread program of corporate governance reform? Yosifon is surprisingly optimistic. “Shareholder primacy is not the only system of corporate governance used in the world today,” he told Salon. “Other wealthy, democratic societies impose corporate social responsibility in the boardrooms of large corporations. Germany, France and Japan are three examples.”

If we question that America could never change that radically, he suggests we should think again. “If Donald Trump can be elected president of the United States, then we can and we must recalibrate our ideas of what is politically possible,” he said. “Serious corporate governance reform is easier to achieve than a constitutional amendment overturning Citizens United, or changing the structure of the Electoral College. Yet it is not a serious topic in ordinary political discourse. It can become one.”

In recent years, people have become increasingly sensitive to multiple different ways in which corporate irresponsibility harms public welfare — from fast food-related illnesses to gun violence, tobacco deaths, the financial crisis, the opioid epidemic and climate change, and now Facebook and Cambridge Analytica. Yosifon suggests we connect the dots that tie all those things together.

As he and Hanson wrote in "The Situation," "Much of the power of 'deep capture' comes from the fact that its targets include the way that people think and the way that they think they think." It’s long past time to think for ourselves.


Paul Rosenberg

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, and a columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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