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8 Critical Analysis L. 139 (2021)
"Transparency Washing" in the Digital Age: A Corporate Agenda of Procedural Fetishism

handle is hein.journals/cclaysolw8 and id is 139 raw text is: Transparency Washing in the Digital Age: A Corporate Agenda of Procedural Fetishism Monika Zalnieriute* Abstract Contemporary discourse on the regulation and governance of the digital environment has often focused on the procedural value of transparency. This article traces the prominence of the concept of transparency in contemporary regulatory debates to the corporate agenda of technology companies. Looking at the latest transparency initiatives of IBM, Google and Facebook, I introduce the concept of transparency washing, whereby a focus on trans- parency acts as an obfuscation and redirection from more substantive and fundamental questions about the concentration of power, substantial policies, and actions of technology behemoths. While the ethics washing of the tech giants has become widely acknowl- edged, transparency washing presents a wider critique of corporate discourse and neoliberal governmentality based on procedural fetishism, which detracts from the ques- tions of substantial accountability and obligations by diverting the attention to procedural micro-issues that have little chance of changing the political or legal status quo. I. Introduction Visibility is a trap. Foucault, Disczjline and Punish, 1977: 200 Transparency is the modern panacea for tempering power and attaining justice vis-a-vis the state, public institutions, and powerful corporate actors. Yet, along many other hyped buzzwords with pseudo-religious qualities, transparency is more often preached than prac- ticed and, ironically, entails mystical qualities.1 While contemporary discourse and legal research on the regulation and governance of the digital environment has often focused on procedural values of transparency and due process,2 the qualities of procedural values such as transparency are rarely challenged. Critical scholars have started investigating the * Senior Lecturer, Faculty of Law & Justice, UNSW Sydney; Australian Research Council Discovery Early Career Research Award Fellow (project number DE210101183), m.zalnieriute@unsw.edu.au. I would like to thank the editor of this special issue, Ida Koivisto for invaluable feedback on earlier drafts. I also thank Emily Hunyor for her excellent research assistance. 1 Christopher Hood, Transparency in Historical Perspective, in Transparency: The Key to Better Governance? 3 (David Heald & Christopher Hood eds., 2006). 2 Danielle Keats Citron, Technological Due Process, 85 Wash. U.L. Rev. 1249 (2008);John Elia, Transparency Rights, Technology, and Trust, 11 Ethics Info. Tech. 145 (2009); Nicolas Suzor, Lawless: The Secret Rules that Govern Our Digital Lives (2019). ISSN 2291-9732

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