10.1 Introduction

This quote from the appeal case of Mr XX, an Iranian asylum seeker of Kurdish ethnic origin in the UK, addressed the use of social media, particularly Facebook, in asylum and immigration appeals, as well as the implications of surveillance by social media platforms and states. As asylum applications require extensive evidence, digital tools used by asylum seekers have also increasingly appeared in courts alongside identity documents, travel documents, medical certificates, biometric data and other evidence such as newspaper articles. In their guidelines on credibility, the UK’s Home Office does not list social media posts or other digital technologies among the evidence that can be considered by its caseworkers.Footnote ² Nevertheless, in the case of Mr XX, he was appealing the refusal of his asylum claim based on material critical of the Iranian government that he had posted on Facebook, and on the effects these digital traces might have in the case of his removal to Iran.Footnote ³

What was at stake in this case was not simply to evaluate the credibility of Mr XX’s Facebook postings. Rather, as Mr XX’s narrative of opposition to the Iranian government was deemed to lack credibility, the kinds of digital surveillance enabled by social media platforms were crucial to the appeal. Digital surveillance could expose Mr XX to the risk of harm if removed back to Iran. For asylum seekers, surveillance cannot be taken for granted but becomes a matter of contention in courts. What constitutes digital surveillance, who is targeted, by whom, and what are the probabilities of such surveillance? States, international, and humanitarian actors use digital devices to filter, hierarchise, and confine people on the move. Private and public actors are entangled in digital surveillance, with the role of big tech companies such as Palantir garnering public attention.Footnote ⁴ However, there has been less attention to the sociotechnical problematisations of data extraction and digital surveillance in asylum processes and how asylum seekers are required to connect their digital traces and surveillance.

The Upper Tribunal Immigration and Asylum Chamber (UTIAC), where Mr XX appealed a previous negative decision by the FtT, had to decide on ‘the issue of risk on return arising from a person’s social media use (in particular, Facebook)’.Footnote ⁵ What was required here was not certainty or even high probability, but the lower probability of a ‘reasonable degree of likelihood’.Footnote ⁶ The lower standard of proof used in asylum and immigration cases governs how data from digital platforms and related surveillance claims are evaluated in courts. Digital platforms appear in several guises: they are used by asylum seekers to collect data to substantiate their cases, they are data-extractive tools that commodify data, and they are also used by governments to track, surveil and monitor people on the move.

This chapter traces how asylum seekers are exposed to epistemic violence when using data from digital platforms to substantiate their claims for international protection. Epistemic violence has generally been understood as the violence that subjects experience as knowers, often through the erasure or silencing of their knowledge.Footnote ⁷ Border and migration scholars have formulated ‘epistemic borderwork’ as an instantiation of epistemic violence ‘used by state authorities to silence unwanted voices, undermine insurgent perspectives, and stifle the capacity of refugees to draw attention to their own mistreatment’.Footnote ⁸ Here, I show how new forms of epistemic violence emerge not just from the erasure and silencing of knowledge but also from the demand to know.

First, I argue that we need to distinguish between data extraction and surveillance to account for the difficulties that asylum seekers face in making their case, which I call here ‘data wrangling’. In Shoshana Zuboff’s acclaimed diagnosis of surveillance capitalism, data extraction is largely equivalent to surveillance.Footnote ⁹ While Zuboff focuses on big tech companies such as Facebook (now Meta) and Google, by equating data extraction and surveillance, surveillance extends to all actors involved in digital economies. However, asylum seekers have to evidence the likelihood of surveillance and, in the wake of the 2022 XX case, have been asked to bring ‘all the data’ to assuage suspicions of manipulation and instrumentalisation of social media. The demand to know has become an insatiable demand for more and more data.

Second, another form of epistemic violence emerges through the impossible demand to know the unknowable. I introduce the concept of ‘platform power’ to show that it is impossible to clarify which third parties can access data on digital platforms, whether data can be sold further, to whom, and how it can be recombined and reused for the purposes of surveillance. Platform power also raises questions about which concepts scholars and activists can mobilise to critique these forms of epistemic violence.

To develop these arguments, I discuss a selection of UTIAC decisions where the use of Facebook is problematised in relation to state and non-state digital surveillance. The UTIAC archive can be seen as integral to discourses of transparency and open government data, where data is made available to invisible publics to foster accountability. However, open government data enacts the ‘data subject as both auditor and entrepreneur’.Footnote ¹⁰ This is particularly the case where data that is made visible is not necessarily legible and intelligible.Footnote ¹¹ The UTIAC archive has not been prepared for archiving and has minimal metadata. The limited metadata that the archive contains distinguishes between ‘reported’ cases, which are citable and therefore relevant to future legal arguments, and ‘unreported’ cases, which constitute the majority of the archive.Footnote ¹² The archive is hosted on the Amazon Cloud and is searchable by keywords. In this chapter, I focus on a selection of reported and unreported cases where ‘Facebook’ is mentioned, given that it had the highest frequency over the years.Footnote ¹³ Facebook is also a paradigmatic case of surveillance capitalism.Footnote ¹⁴ Cases mentioning Facebook also continually increased in recent years. Up to the end of 2022, there had been 551 cases.Footnote ¹⁵

The chapter is structured in three sections. The first section situates digital surveillance in the context of the literature on the datafication of borders and migration. The second section analyses a selection of cases to show how discontinuities between data extraction and digital surveillance enable new forms of epistemic violence through the insatiable demand for ever more data. The third section introduces platform power to highlight another form of epistemic violence produced through the demand to know the unknowable. I conclude with reflections on how critical interventions need to simultaneously reject epistemic violence and defend asylum seekers’ rights.

10.2 Datafication, Data Making and Data Wrangling

The literature on digital technologies and migration has gradually shifted its attention from mobile devices as ‘lifelines’ for refugees, used to access information, track routes and keep in contact with family and friends,Footnote ¹⁶ to the datafication of migrant bodies.Footnote ¹⁷ Datafication is not simply the process of collecting data about people but also that of transforming bodies, actions, and things into data that can be processed by algorithms.Footnote ¹⁸ Biometric, digital, statistical, social media or transactional data have performative power, as mobile bodies under surveillance are classified according to racialised, gendered and class lines.Footnote ¹⁹

More recently, these critiques have been recast in light of the extensive processes of datafication and the use of machine learning algorithms. For Louise Amoore, the emergence of the ‘deep border’ powered through deep learning ‘explodes and scatters biometric data so that they are no longer primarily connected to characteristics as such, but rather gather together with a multiplicity of data features in a deep learning model that renders all data equivalent; all data as potential borders data’.Footnote ²⁰ However, border data includes many different forms of data. Migrants are also increasingly compelled to make data. They are turned into forced tech usersFootnote ²¹ and data makers.Footnote ²² Legal scholar Fleur Johns explains this transformation in the broader context of governance by data, whereby ‘subjects must now call themselves forth digitally to recognize themselves, and make themselves recognizable, within surrounding social and legal orders’.Footnote ²³

In this dual interpellation as tech users and data makers, migrants straddle the tensions of datafication – of using data and having their data continuously extracted by border and humanitarian actors, corporations, and increasingly by all. Media scholars Sandra Ponzanesi and Koen Leurs have outlined this duality of datafication, where data extraction and data making are not separate but entwined:

By using digital devices, platforms and apps, migrants generate more and more data required by states and valorised by platforms. This data comes in different forms, not just analogue and digital, but also biometric and biographical, statistical and sensor data, social media and location data, to name just a few.

The data is not only extracted by states – with the support of private and humanitarian actors – but also by big-tech commercial platforms. These platforms extract what we can call, following philosopher Bernard Harcourt, ‘expository’ data. Expository data is disclosed and volunteered on platforms such as Facebook, YouTube, or TikTok. This expository data refers to the content that migrants (and other users) post, whether as unstructured text data, images, or structured as ‘likes’. Harcourt outlines the insidious power of this expository data: ‘It is about every little desire, every preference, every want, and all the complexity of the self, social relations, political beliefs and ambitions, psychological well-being. It extends into every crevice and every dimension of everyday living of every single one of us in our individuality.’Footnote ²⁵ It is this granularity that makes expository data attractive for border authorities, as expository data can be used to challenge the credibility of an asylum seeker’s account of who they are, their connections, experiences and actions.

Expository data is supplemented by ‘surplus data’, which circulates on digital platforms, but it is not immediately visible.Footnote ²⁶ Surplus data is produced as migrants have to use digital platforms to connect with authorities, register their claims or bring evidence to substantiate their claims for international protection. Surplus data includes metadata and transactional data. While not directly used by states for border control, this data can be retrieved, for instance, through mobile phone extraction. Thus, alongside data extracted for ‘filtering’ mobile people at borders and assessing claims to protection and expository data extracted by platforms, surplus data circulates across multiple platforms that are ‘parasitic’ on the data that everyone – including migrants – produces.

As migrants are increasingly compelled to make and relinquish data, scholars have focused on processes of extraction by border and humanitarian actors, rather than on how asylum seekers have to work with data to lodge and substantiate their claims. For instance, they have explored the use of mobile data extraction and the challenges to it in asylum practices in Belgium, Germany, the Netherlands and Sweden.Footnote ²⁷ In the UK, the secret confiscation of mobile phones by the Home Office and subsequent data mining have been successfully challenged in a legal case led by Privacy International.Footnote ²⁸ Scholars and activists have also highlighted the effects of database interoperability on asylum seekers’ claims, particularly when applications are deemed inadmissible in one state and asylum seekers can be returned to another state deemed ‘safe’.Footnote ²⁹ Or they have shown how the humanitarian digital ecosystem intensifies colonial and paternalistic dynamics.Footnote ³⁰

Asylum seekers also undertake extensive data work to present digital and analogue information to caseworkers and judges for consideration as evidence.Footnote ³¹ They are compelled to work with data and become ‘data wranglers’ and not just ‘data makers’. While paperwork has not disappeared, digital data brings the promise of granularity, of minute details that could make a difference. Data wrangling is used in data science to refer to the processes of cleaning, combining and transforming datasets to make them analysable and to create new insights. Data scientists see three outcomes of data wrangling: making data usable, credible and useful.Footnote ³² I use data wrangling here to render the practices of making data usable, credible and useful for their claims for protection. Data wrangling draws attention to the struggles and difficulties that asylum seekers experience in transforming data into legal evidence of persecution and surveillance.

What does data wrangling mean for asylum seekers and their claims for protection? Asylum seekers have used expository data – their posts on digital platforms criticising governments in their country of origin, whether before arrival in the UK or sur place in the UK – to support their claims for international protection. To do so, they have needed to prove to a standard of ‘reasonable likelihood’ that they were under surveillance. How to connect data extraction and state and commercial surveillance has been a question that asylum seekers and their legal representatives have had to grapple with.

For asylum seekers, surveillance is uncertain, be it surveillance by social media companies or states. Zuboff’s acclaimed diagnosis of surveillance capitalism worldwide renders data grabbing as a new frontier of capitalism, producing profit from reality itself: ‘Machine intelligence processes behavioral surplus into prediction products designed to forecast what we will feel, think, and do: now, soon, and later’.Footnote ³³ Monitoring and manipulation are at the heart of surveillance capitalism, where advertising and marketing have taken a central role. Through surveillance capitalism, data extraction folds onto surveillance and vice versa. This also enables the extension of commercial surveillance into state surveillance through ‘the growing interdependencies between the intelligence agencies, resentful of constitutional constraints on their prerogatives, and the Silicon Valley firms’.Footnote ³⁴

While data extraction fuels and is fuelled by surveillance, scholars have also started problematising the equation of data extraction with surveillance. For example, drawing on Michel Foucault’s conceptualisation of power, Harcourt questions the dominance of surveillance to understand our relation to digital technologies. ‘We are not being surveilled today so much’, he argues, ‘as we are exposing ourselves knowingly, for many of us with all our love, for others anxiously and hesitantly’.Footnote ³⁵ Harcourt’s argument goes beyond work that has nuanced or specified surveillance understood through the architectural model of the Panopticon via variations on ‘opticon’ such as synopticon, oligopticon, polyopticon or banopticon.Footnote ³⁶ Media scholar Taina Bucher has also challenged the imaginary of a Facebook Panopticon, arguing that it is not the threat of monitoring that is at stake, but ‘the possibility of constantly disappearing, of not being considered important enough’.Footnote ³⁷ AI researcher Stephanie Sherman has similarly gestured towards the limits of equating datafication with surveillance:

Digital surveillance does not account for the challenges that asylum seekers face connecting their digital traces and the likelihood of surveillance by state and non-state actors. It also does not account for their data-making, the political acts they engage in, and the forms of digital citizenship they enact.Footnote ³⁹ If we start from the asylum seekers’ data-wrangling rather than the certainty and ubiquity of surveillance, we can understand how they are exposed to new forms of epistemic violence. To do so, the following section discusses a selection of UTIAC decisions in which the relation between data extraction and surveillance was disputed.

10.3 Data Extraction and the Limits of Digital Surveillance

It was only at the beginning of 2022 that the XX case began to change judicial understandings of the roles of surveillance by state and social media platforms. Mr XX claimed asylum ‘based on his fear of persecution because of his political beliefs, specifically his support for the Kurdistan Free Life Party (Partiya Jiyana Azad a Kurdistanê, (“PJAK”)’. He adduced evidence of being persecuted in Iran and of sur place activities in the UK, where he ‘had attended demonstrations and set up a Facebook account, which included material critical of the Iranian government’.Footnote ⁴⁰ While his account of events was deemed to lack credibility by the FtT, and this finding was preserved by the UTIAC, the question remained whether he would be at risk of persecution if removed to Iran, given his social media activities and potential surveillance by the Iranian government.

The case raised issues of government surveillance through data extraction from digital platforms, but the Tribunal went one step further than previous cases that relied on social media activities. It asked Facebook questions of clarification on its own surveillance and data-sharing practices. After an initial lack of response from Facebook to Home Office’s questions, Facebook Ireland responded to a Tribunal request. The Tribunal wanted to understand how Facebook content could be accessed by third parties – including governments – and what kind of surveillance could still be in place based on digital traces after an individual’s account had been deleted. Two experts called by the appellant gave oral and written evidence on social media platforms and the Iranian surveillance capabilities, respectively.

The Tribunal assessed the different types of state surveillance that are ‘reasonably likely’ based on social media activities. Mass surveillance by the Iranian state was found unlikely, both because data is assumed not to be easily ‘scraped’ and given an assumed discrepancy between the capabilities of the Iranian authorities and their discourse.Footnote ⁴¹ The Tribunal deemed Iran to claim to do more than it was effectively able to do in practice. If mass surveillance was improbable, the only reasonable likelihood remaining was that of targeted surveillance. Yet, the probability of targeted surveillance was also speculatively diminished as Facebook did not answer questions concerning activities by third parties:

…

The Tribunal grappled with different forms of surveillance – surveillance on social media platforms, surveillance by third parties, mass surveillance and targeted surveillance. There was no continuous, certain or ubiquitous surveillance. The connections between social media posts and different forms of surveillance were a matter of contestation and weighing of probabilities.

Given the focus of the case on whether the removal of Mr XX to Iran would pose a risk of harm, the key question was how the asylum seekers’ expository data might entail surveillance by third parties, in this case by the Iranian government. Surveillance studies scholars have shown that ‘Iran has a complex assemblage of overlapping governmental and non-governmental institutions that are mandated with the regulation of internet content and access’.Footnote ⁴³ However, the UTIAC found that the difficulties of scraping data from Facebook would make mass surveillance by Iran unlikely. If mass surveillance by third parties was unlikely, then the question became one of targeted surveillance. Targeted surveillance presupposes a hierarchy of significance. What qualification would then turn a person into a target of surveillance? Only high-profile individuals whose Facebook accounts had attracted a lot of attention on social media were deemed to be likely targets of surveillance: ‘Whose Facebook accounts will be targeted, before they are deleted, will depend on a person’s existing profile and where they fit onto a “social graph;” and the extent to which they or their social network may have their Facebook material accessed’.Footnote ⁴⁴ As third-party surveillance, including state surveillance, relies on the visible digital inscriptions that users produce on Facebook, it was not seen to work at scale or to operate on the ‘mass’ of the population.

Nonetheless, for Mr XX, it was the materiality of digital traces, rather than the content of expository data, that enabled the positive result of his appeal. As the UTIAC put it, ‘the nature of his activities puts him at real risk of persecution’.Footnote ⁴⁵ Mr XX’s appeal was accepted given that he had not chosen any of the privacy settings on Facebook, had an extensive social graph with thousands of friends, and continually posted content that attracted ‘likes’. Although Mr XX’s narrative of having taken part in demonstrations in the UK was deemed to be ‘contrived’, the perdurance of digital traces of his activities meant that his forced removal to Iran would incur the risk of persecution. The Tribunal concluded that, compounded with the fact that none of his Facebook settings had been set to private, ‘[h]is carefully curated (albeit contrived) social graph was, in this particular case, just sufficient in our judgment to establish a risk that he has been subject to surveillance in the past that would have resulted in the downloading and storing of material held against his name’.Footnote ⁴⁶

It was exactly because Mr XX did not make his settings private, because data might have been monitored before he deleted his account and because he was actively associating with large numbers of Facebook friends that he could not be removed back to Iran. The public materiality of his digital traces was compounded by the materiality of his networked friends such that his profile gained sufficient network value on social media to be deemed a likely target of surveillance. By generating expository data, Mr XX was afforded legal protection and ‘safety’ from the risk of state violence. But to do so and avoid the risk of harm and persecution, he also needed to make himself demonstrably surveillable.Footnote ⁴⁷

Before this case, in appeals where UK asylum applicants used social media extracts to document their political activities and resistance – both in countries of origin and sur place – the use of social media accounts, particularly Facebook, was often part of the reason the appeal was dismissed.Footnote ⁴⁸ This was mainly because digital traces were seen as effaceable. For instance, the UTIAC adopted such a judicial assessment in the case of a Kurdish asylum seeker from Iran:

In these cases, judges often assumed that all that was required to nullify the risk of surveillance in the countries of origin was for asylum seekers to delete their social media accounts. Indeed, in the case of Mr XX, the FtT decided that the asylum applicant could simply delete their Facebook account before being forcibly removed from the UK to Iran, as his claim was rejected. These requests to delete social media accounts have been common in cases where rejected asylum seekers challenged decisions to remove them from the UK.Footnote ⁵⁰

In having to connect data extraction and digital surveillance, asylum seekers are confronted with new forms of epistemic violence. This is not just the epistemic violence of erasure and deletion, but the epistemic violence of the demand to adduce more and more data and to know how their digital inscriptions are used. This demand to know is undergirded by a suspicion of manipulation and faking. Another UTIAC case of an Iranian citizen of Kurdish ethnicity highlighted this shift from demonstrations and organising (e.g., strike organising) as a form of political activism to the use of digital platforms. Mr BR ‘recorded anti-Government raps on his mobile phone while in Iran’. Subsequently, ‘His phone was lost or stolen, and he became aware that his anti-Government raps had been shared on various online platforms (Facebook, YouTube and Telegram)’.Footnote ⁵¹ Mr BR left Iran after his home was raided by the police, made his way to Germany, where his asylum claim was rejected and then reached the UK via France (presumably via Calais). Mr BR’s appeal against the Home Office’s refusal of his asylum claim was rejected at the FtT, where the judge questioned the credibility of Facebook posts as eminently falsifiable: ‘posts can be taken down and altered, settings can be changed between public and private, and screenshots only show the status shown on a page for the moment of the photograph and may only show a temporary change to a page made for the purpose of the screenshot itself.’Footnote ⁵²

However, at the Upper Tribunal, the judge did not accept this view of social media inauthenticity and highlighted the materiality of social media data, concluding that it was not ‘reasonable to assume that the anti-Government Facebook posts are not accessible to the Iranian authorities, even if they have been taken down’.Footnote ⁵³ Here, the materiality of data extraction on digital platforms meant that state surveillance was a probability that could not be discounted any more than it could be assumed.

Despite the positive decision in the XX case, subsequent decisions in cases in which asylum seekers used Facebook to express criticism, opposition, or resistance minimised or denied the likelihood of asylum seekers’ surveillance by states or state proxies. In the wake of this reported case, courts deemed surveillance ‘reasonably likely’ only for high-profile activists or party members.Footnote ⁵⁴ The likelihood of surveillance was assessed based on extended temporalities of posting and networking, which would have allowed governments to become aware of these anti-government activities. The production of networks (‘social graphs’) could turn certain users into ‘nodes’ and, therefore, potential targets for state surveillance.

Asylum seekers’ data making on digital platforms also enabled intensified data extraction, as judges demanded that more and more data be submitted or deemed the Facebook posts in the appellants’ bundle insufficient. Following discussions about ‘invisible’ metadata, such as location or time of postings in the XX case, the UTIAC made requests for surplus data to supplement the submission of expository data. For instance, in another decision citing the XX case, the UTIAC judge declared printouts of Facebook posts of limited value as ‘we have not been provided with the appellant’s full Facebook activity profile by way of the Download Your Information (“DYI”) function in Facebook. The importance of full disclosure was highlighted by the Upper Tribunal at [96] of XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23 (IAC).’Footnote ⁵⁵

‘Download Your Information’ was meant to provide the Tribunal with the data about the location, time or frequency of social media activities. Download Your Information also contains sensitive personal data, family connections, networks and intimate histories.Footnote ⁵⁶ To make themselves demonstrably surveillable, asylum seekers had to make themselves entirely and absolutely knowable through all the data.

In the XX case, the UTIAC used the extraction of metadata on digital platforms to argue that ‘a wealth of wider information, including a person’s locations of access to Facebook and full timeline of social media activities, readily available on the “Download Your Information” function of Facebook in a matter of moments’ should be submitted to the court.Footnote ⁵⁷ In the absence of such metadata, printouts were deemed manipulable and therefore lacking in credibility. Moreover, the applicant in this case, Mr HA, was found not to have attracted the attention of Bangladeshi authorities due to his low-profile activities sur place, including participation in demonstrations and Facebook posts. Alongside the lack of metadata, the judge contrasted governmental practices in Bangladesh to those in Iran so that the risk of surveillance appeared unlikely:

Yet, Iranian asylum seekers themselves could still have their appeals rejected in the wake of the XX case on similar grounds of lack of surveillance by the state and assumed state inability to access their digital traces.

In another Tribunal decision following the XX case, Facebook posts submitted by an Iraqi citizen of Kurdish ethnicity were not accepted as evidence based on the entangled materialities of networks, privacy settings, language and metadata. The evidentiary value of Facebook posts was discounted given the absence of translations and exhaustive metadata, as now expected through ‘Download your data’:

Alongside the responsibility of asylum seekers to know the intricacies of social media platforms, their interfaces and privacy settings, the legal cases analysed above continued to reinforce their responsibility to ‘collect, assemble and order data’ without attention to asylum seekers’ capabilities and resources to do so.Footnote ⁶⁰

The UTIAC requested translations of Facebook posts and extensive data disclosure across several cases citing the XX case, without any consideration of the resources and labour required to make data and translations available. While in some cases Google translations seemed to be acceptable to the UTIAC, in other cases the question of certified translations was brought up against the applicants:

Because all this data was potentially available from Facebook, the UTIAC reasoned, it should be disclosed and submitted to the courts. The demand to know was severed from the material infrastructure and resources that enable knowledge production.

Following the XX case, asylum seekers in the UK have faced intensified demands for data making and wrangling. As we have seen, expository data has become increasingly insufficient as evidence, and it needs to be supplemented by the metadata extracted by digital platforms. Echoing Tasniem Answar’s and Beste İşleyen’s observations in the context of terrorist financing trials, here too, ‘the burden to know’ was placed on ordinary people, who were expected to know while simultaneously having their knowledge contested, discarded or dismissed.Footnote ⁶² The next section introduces the concept of platform power to show how the demand for ever more data is supplemented by an impossible demand to know the unknowable.

10.4 Platform Power and the Violence of Knowing the Unknowable

Asylum seekers wrangling with data to substantiate their cases in court have to connect data extraction and digital surveillance. For them, surveillance cannot be taken for granted as the aim and purpose of data extraction, whether by the state or companies. However, the demand that asylum seekers connect data extraction and surveillance, even to a lower standard of proof, is an impossible demand. This is not, I argue, due to Facebook’s secrecy about its data sharing and commodification practices but due to how platforms operate in the digital economy.

As media theorists have explained, online platforms are a ‘programmable digital architecture designed to organize interactions between users – not just end users but also corporate entities and public bodies … geared toward the systematic collection, algorithmic processing, circulation, and monetization of user data’.Footnote ⁶³ Platforms are characterised by two types of relations: on the one hand, data extraction from users and the incitement of users to make more and more data and on the other, service provision through relations with ‘complementors’. On digital platforms, the more data is made, the more valuable the platform is.

The expansion of platforms has given rise to ‘worries about the concentration of power and an oligopolistic market structure’ particularly given the ownership of large platforms by the US Big Five tech companies.Footnote ⁶⁴ This assumption of centralised legal-political power underpins the UTIAC questions to Facebook. However, as Tobias Blanke and I have argued, platform power also needs to be understood through the opposite move: of breaking up digital components into ‘services’ and ‘microservices’ offered to an indefinite array of third parties.Footnote ⁶⁵ In that sense, ‘platform power emerges through the dual move of decomposing into small components and recomposing these across the web’.Footnote ⁶⁶

More importantly, in doing so, platforms blur their own boundaries: they can extract data by connecting to other platforms and share it with third parties. Platforms have become ‘an opaque and complex ecosystem in which connections are invisible to the public eye and hence largely beyond societal control’.Footnote ⁶⁷ Blanke and Jennifer Pybus have also drawn attention to ‘the underlying and integrated network of technical actors that supports the capture of user data well outside the discrete boundaries of the platform’.Footnote ⁶⁸ This ecosystem connects advertisers and data brokers who can sell the data to an even more extensive array of distant parties, including governmental actors. The result of this move is that ‘the Internet user is permanently connected to platforms – often without realizing it’.Footnote ⁶⁹ Moreover, the decomposition of platforms into a vast array of services and microservices means that ‘[p]latforms are so dispersed and heterogeneous that only machine learning can bring them together again’.Footnote ⁷⁰

Platform power works through data extraction and microservices dispersed across the globe. These platform operations mean that it is difficult, if not impossible, to say when or if data really disappears from the internet. It is also impossible to clarify which third parties can access data on digital platforms, whether data can be sold further, to whom, and how it can be recombined and reused for the purposes of surveillance. This impossibility is reflected in hesitations and ambiguities across Facebook’s policies. Facebook is not only ambiguous about what data remains after an account is deleted, but also about all forms of attempted disconnection that could lead to data loss. For instance, if a post is deleted while the user still has an account, Facebook explains that ‘Facebook may keep service-related information about your account, like IP address logins or email changes on your account, to protect your security, prevent abuse, and improve our services’.Footnote ⁷¹ Moreover, any data shared by friends about an account will not be deleted. Facebook also keeps log data but argues that it is depersonalised and, therefore, cannot be traced back to an individual.Footnote ⁷²

There are many ways in which data perdures, not just through Facebook’s reluctance to delete all the data, either upon account closure or after other deletions. Although in the XX case, expert evidence referred to an investigation by the New York Times, which found that Facebook had shared personal data with 150 companies, the UTIAC discounted any likelihood of data sharing with the Iranian government.Footnote ⁷³ An analysis of platform power indicates that such data sharing is not improbable, even if it is impossible to identify the exact third parties with whom data is shared. Data brokers further sell data that they have acquired from digital platforms. Given the ambiguous boundaries of platforms and the multiple temporalities of data, it becomes impossible to ascertain whether some data will continue to exist on the web and whether governments can access it with or without the mediation of other parties. The data is never sufficient, not just because social media platforms produce many opacities about the data they collect and share but because their operations are dispersed and can only be held together through machine learning algorithms.

Facebook transforms its boundaries through apps and services that allow it to expand into new markets and industries. Anne Helmond and Fernando van der Vlist have shown that ‘Facebook has been steadily growing by accommodating various strategic stakeholder groups through its architectural design and programmability’.Footnote ⁷⁴ Platform power blurs these binaries by being neither fully opaque nor fully transparent, neither private nor public, neither open nor secret, but by being both. In written evidence before the US Congress, technology researcher Caitlin Chin pointed out that intelligence services in the US can gain access to Facebook data exactly through third parties, without having to ‘break’ Facebook’s security arrangements or demand the disclosure of personal data:

States can request user data from social media companies as part of legal investigations or court cases. As a New York Times article notes, ‘which data law enforcement can get depends on the sort of request they make’.Footnote ⁷⁶ In their Transparency Report for January–June 2022, Facebook reported 237,000 government requests for 412,285 user accounts.Footnote ⁷⁷ Most requests come from the US, India, Germany, France and the UK. Yet, countries of origin for refugees are also listed with data requests: Pakistan has 1,373 requests, Nepal has 602, while Iran and Iraq have only 2 and 6 requests, respectively. However, the transparency reports do not tell us anything about data brokers and other non-state third parties.

The operations of platform power illuminate the epistemic violence of the demand to know the unknowable. As we have seen, asylum seekers do not only face the epistemic violence of knowledge erasure and disbelief. While these forms of epistemic violence also infuse the politics of asylum, I have focused here on epistemic violence enacted through the demand to know. Asylum seekers are confronted with the violence of the demand to know by making and wrangling with more and more data. Moreover, they are also confronted with the demand to know the unknowable.

10.5 Conclusion: An Impossible Critique?

This chapter has argued that critical diagnoses of generalised surveillance and surveillance capitalism do not account for the asylum seekers’ experiences of data wrangling. These disconnections between data extraction and surveillance come into stark relief when asylum seekers mobilise their expository data to support their claims for protection and to evidence their actions of protest and resistance. Drawing on appeal cases before the UTIAC in the UK, I have shown how asylum seekers have been required to submit more and more data in order to prove that they might be likely targets of surveillance in their countries of origin. Even as the materialities of data extraction on social media platforms like Facebook have supported claims of future risks of harm and persecution, these materialities have also given rise to intensified demands by courts to access ‘all the data’, to make metadata and not just expository data available in court, and present it in many different forms – both as original data through ‘Download Your Data’ on Facebook and through translations of posts, which turns data making into a difficult and expensive undertaking for asylum seekers.

Through an analysis of court decisions, I have drawn attention to how asylum seekers are exposed to new forms of epistemic violence. Following the social media guidance issued by the UTIAC in the XX case, subsequent decisions showed that the Tribunal required more and more data from asylum seekers, including metadata from digital platforms. Having all the data is not only a question of privacy and the exposure of personal and often sensitive information to courts. The request for all the data intensifies the asymmetries of power and confronts asylum seekers with new forms of epistemic violence. Asylum seekers have to make themselves surveillable in ways that harbour future risks of harm. They are forced to engage in more and more data making and wrangling without the money, support or resources that data work entails. Finally, by introducing the concept of platform power, I have shown that an intractable demand to know the unknowable is foisted upon asylum seekers and their legal representatives. The concept of platform power sheds light on the impossibility of connecting data extraction and the likelihood of surveillance by state or non-state actors. As platform power operates by taking the inside out and bringing the outside in, it is impossible to clarify which third parties can access data, whether data can be sold further, to whom, and how it can be recombined and reused. Platform power undoes the binaries of privacy/publicity, transparency/opacity, openness/secrecy, and monitoring/indifference. It also obfuscates the attempts to ascertain the likelihood of digital surveillance.

What can critical interventions do to challenge the insatiable demand for data and the impossible demand to know the unknowable? I suggest that critical interventions – by researchers, activists, journalists or lawyers – need to refuse the epistemic violence of knowing the unknowable in order to resist the dismantling of asylum seekers’ rights. As we have seen, more data wrangling does not bring better outcomes, as ultimately data extraction on social media platforms can always be found insufficient or otherwise deficient. The materiality of digital traces means that this data rarely disappears. A UTIAC decision preceding the XX case shows that this reasoning is possible. Here, the UTIAC judge situated the materiality of digital traces in the context of the likelihood of harm for the asylum seeker: ‘The appellant faces a real risk of persecution because the authorities will impute an anti-regime political opinion to him as a result of a combination of his Kurdish ethnic origin, illegal departure and sur place activities (whether undertaken in good faith or not and whether his Facebook account is deleted or not).’Footnote ⁷⁸ The judge avoided the blackmail of ‘either … or’ by working with the blurring of boundaries and materialities of digital platforms.

Could such a refusal of binaries inform the assessment of the likelihood of surveillance? While the boundaries between data extraction and surveillance remain unknowable, despite activist and academic attempts to make some of these circuits and entanglements visible, surveillance is neither certain nor uncertain. Its reasonable likelihood can be rarely, if at all, proven, but the operations of platform power also mean that one can reasonably hold that surveillance is not improbable. The double negation of ‘not improbable’ can be counterposed to the demand to know the reasonable likelihood of surveillance.