Introduction - The Privacy is the Currency of Trust
In 2021, Facebook, rebranded as Meta, purchased WhatsApp for $19 billion, shifting privacy from something to protect to something to sell. This acquisition highlighted a trend in technology mergers and acquisitions (M&As), valued at over $700 billion in 2023, focusing on information about people. These M&As raise ethical questions about balancing innovation with integrity and the role of lawyers in maintaining trust.
This essay argues that Michel Foucault’s concept of the panopticon, a metaphor for unseen surveillance, can guide ethical mergers. Québec’s Law 25 (Privacy Modernization Act) serves as a model for balancing corporate goals with shared prosperity, emphasizing the role of corporate lawyers in fostering trust in mergers.
The Panopticon of Foucault - The Hidden Architecture of Modern-day Mergers
Imagine a world where every click, every swipe, and every search is collected in secret—not by a dystopian state, but by the apps we invite voluntarily into our worlds. It is not sci-fi. It is the truth about Big Tech’s consolidation binge, where corporations build empires of information with the same avarice with which titans in the 19th century took land and railroads. In order to grasp how we got here, we need to go back and examine Michel Foucault’s 1975 examination of the panopticon—a concept whose outlines foretellingly resemble the unseen power relations in today’s technology consolidations.
The panopticon was a design originally. In the 1780s, English philosopher Jeremy Bentham drew up a design for a circular jail with cells in a circle around a guard tower in the center. The tower’s windows were stained glass, keeping prisoners in a state of perpetual doubt: Are we under observation at the moment? It was the panopticon’s brilliance, in Foucault’s eyes, not needing shackles and sheer power but forcing prisoners themselves to monitor their actions, internalizing the unseen watchful eyes.
In Discipline and Punish, Foucault didn't claim the panopticon was a jail alone—it was a metaphorical description of modern-day society. The panopticon was implemented in schools, where citizens are conditioned to conform with societal rules under subtle surveillance. The panopticon’s reasoning today has migrated on the net. The guard towers are in the guise of social media websites, health-monitoring watches, and search engines. We users are not only guards but also prisoners, and we are privy to the surveillance.
From Screens to Algorithms: The Digital Panopticon
Consider Instagram’s algorithm. It doesn't just watch what you like—it learns what you think about, what you screen-capture, even how briefly your thumb stays on a post. Like Bentham’s prisoners, we shape what we do in expectation of this invisible watcher. We curate "aesthetic" feeds, avoid contentious subjects, and pretend happiness in order to encourage participation. The result? An endless loop in which platforms shape reality, and reality creates platforms.
Tech mergers strengthen this loop. When a firm acquires a competitor, it’s not just eliminating the competition—it’s expanding its panopticon. Think of Google’s $2.1 billion acquisition of Fitbit in 2020. Overnight, Google had access to 28 million users’ heart rate, sleep pattern, and workout routine. Throw in Google’s location data and search history, and what philosopher Shoshana Zuboff calls a "behavioral surplus" is traded to ad vendors, insurance providers, and even campaign operatives.
Yet unlike Bentham's prisoners, we are not simply watched—we are predicted. Machine learning algorithms process our data to anticipate our next step, rendering human spontaneity a measurable asset. Foucault referred to this as biopower: the control of populations through the regulation of bodies and behaviors. Corporations now exercise biopower via mergers, converting personal data into predictive capital.
The WhatsApp-Facebook merger is a case in point.
No case better represents the panopticon’s contemporary incarnation than Facebook’s takeover in 2014 of the company WhatsApp. In those days, WhatsApp was a privacy sanctuary. Its founders had pledged, "No ads, no games, no gimmicks," and its end-to-end encryption made even Facebook powerless to read users' messages. But in the fine print of the merger was a key fact: WhatsApp’s metadata—which users messaged, and how long they chatted with them—was not encrypted.
By 2021, WhatsApp updated its privacy policy, mandating information sharing with Facebook in order to "product experiences" (code phrase for targeted advertising). People were "blessed with a 'choice': accept the conditions or risk having access taken away on a platform fundamental to their professional and personal life. Digital coercion is what philosopher Luciano Floridi (Oxford) refers to in such situations where a decision not to participate is economically or socially not viable.
Here, Foucault’s panopticon is revealed in darkest potential. Not only do mergers collect information—but they normalize exploitation. Users who are unsure how their information is being utilized rely on compliance. And corporations shrouded in legalese and algoritmical opacity are little answerable.
Law 25: Québec’s Beacon in the Digital Fog
Québec’s Privacy Modernization Act (Law 25), enacted in 2023, is a balance against such uncertainty. Unlike punitive legislation penalizing violations in retrospect, Law 25 makes firms think ahead-of-the-curve in advance of mergers:
How will data be used post-acquisition?
Does this agree with the original purpose under which users submitted their information? What are the dangers to societal trust and personal liberty?
These Privacy Impact Assessments (PIAs) are not administrative speedbumps—they are ethicological checkpoints. Consider a hypothetical Montréal mental health app sold to a Silicon Valley technology company. Law 25 would compel the acquiror to demonstrate that confidential customer information (e.g., mood tracking, journal therapy notes) is not resold for advertising. It is not compliance—it is a market edge. In a McKinsey survey in 2023, 76% of consumers said they would pay a premium on products sold by firms protecting their information.
Law 25’s genius is in its foundations. The philosophical underpinning in Québec’s Civil Code, where there is a concentration on good faith (Article 1375), is a reflection on a philosophical lineage prioritizing the greater good over personal enrichment. It is consistent with Foucault’s later thinking, in which he believed opposition to oppressive systems starts with exposing power. By insisting on openness in mergers, Law 25 doesn’t crush innovation—it channels it in a way that creates trust.
Corporate Lawyers: Masters in Plain Language
For lawyers, there is a challenge and a potential. Traditional M&A due diligence is about financial audits and regulatory compliance. But in the digital panopticon, the key due diligence is going to be ethical auditing. Lawyers are in a position where they can lead the way in doing this.
Reframing Data as a Liability, Not an Asset: Though user data generates revenue, its mishandling threatens billion-dollar fines (e.g., Meta's $1.3 billion GDPR fine in 2023). PIAs under Law 25 assist clients in discovering concealed liabilities at an earlier stage.
Advocating for "Privacy by Design": Embedded privacy protection in a merger’s design—e.g., anonymizing information or limiting retention durations—can prevent backlash. Apple’s app tracking feature decreased information shared with third parties and improved brand loyalty by 34% in 2022.
Teaching Clients About the Value of Trust: An Edelman in 2023 found that 81% of clients buy from a brand in which they trust. Mergers based on privacy are not only ethical—they are profitable.
Foucault once stated, "Knowledge is not made for understanding; it is made for cutting." In the area of mergers, what this implies is utilizing legal and philosophical acumen in order to cut away at uncertainty, uncovering risks and possibilities in equal measure. Law 25 in Québec is the tool.
Privacy as Individual Duty or Collective Right? - GDPR and Law 25
In 2018, the General Data Protection Regulation (GDPR) in the EU made history. Suddenly "data privacy" was a boardroom buzzword, with companies feverishly installing cookie pop-ups and hiring Chief Privacy Officers. But six years later, there is a gaping flaw: GDPR is concerned with protecting people, not societies. When technology consolidation puts empires of information together, consent is a thin veil over systemic harm. Enter Law 25 in Québec, where privacy is not a personal but a societal obligation—a philosophical foundation in civil law’s tradition of balancing liberty and the common weal.
GDPR: The Limits of “Click Here to Agree”
GDPR’s core tenet is person autonomy. Users need to agree voluntarily to information collection, and they have a right to access, modify, or remove their information. It is fine with routine transactions such as newsletter subscriptions. But in mergers, GDPR’s limits are revealed in bold.
Take Google’s purchase in 2020 of Fitbit. The company’s 28 million users had shared intimate health information: heart rate, sleep patterns, even menstrual cycles. In accordance with GDPR, Google would need users' consent in order to cross these with users' search queries and location information. But what is "consent" where the other choice is giving up a $200 exercise device? According to philosopher Onora O’Neill (Cambridge), there is no such thing as "consent" without realistic choices.
The EU approved the merger only after Google committed to keeping Fitbit data segregated from its ad business for a period of 10 years—a promise deemed "legally binding but functionally unenforceable." Once together, the sheer quantity of the data creates power imbalances no person is able to resist. GDPR, in all its virtues, views privacy as a matter of personal choice, not a matter of structure.
Law 25: Privacy is a Social Compact
Québec’s Law 25 is unique. Unlike relying on users having to opt out, Law 25 establishes privacy as the norm (Section 8), and compels corporations to evaluate mergers in systemic risks in Privacy Impact Assessments (PIAs). It is a reflection on civil law’s core tenet of good faith (Article 1375, Civil Code of Québec), where parties are compelled to exercise candour and consider societal implications.
Imagine a fictional merger with a U.S. health conglomerate and a Montréal telehealth app. In Law 25, the acquiror would have to guarantee confidential patient information (e.g., prescriptions, medical histories) won't get utilized other than medically, e.g., insurance pricing or targeted advertising. It is not about compliance—it is about trust in health care institutions.
Philosopher Charles Taylor, who is Québécois, places this in a "politics of recognition" paradigm: laws must enact diverse communal values, not personal taste. In a province where 94% of residents list privacy as a "fundamental right," Law 25 puts such a communal ethic in written words.
Case Study: Google-Fitbit and a Québécois Counterfactual
Let's reframe the Google-Fitbit merger in a Québécois context. Under Law 25, Google would be required to answer questions GDPR never asked.
Would the combination of health and search data worsen biases in AI diagnosis?
Might insurers and employers abuse such information and harm vulnerable groups?
Does the merger align with Fitbit’s original mission to "empower healthier lives"?
These questions do not crush innovation but guide it. Consider Google, for instance. It could adopt differential privacy, a system that anonymizes but still makes information useful. It already has been in practice in Québec: the health authority there applies differential privacy in order to share research on cancer without giving away patient identities.
Law 25’s PIAs are aligned with phronesis, or practical wisdom, on the part of Aristotle. By anticipating harm, lawyers and corporations are able to avoid the debilitating scandals that shatter trust. Consider the breach in 2023 in a U.S. health system with multiple campuses, where patient information sold in a merger was available on the dark net. The aftermath was a loss of $10 million in fines and a reduction in patient admissions of 30%.
The Business Case for Collective Privacy
Critics argue that Law 25 is burdensome on business. But the evidence is contrary:
Customer Retention: In a 2023 Cisco survey, a whopping 78% of consumers said they would stay with a brand that keeps their information secure.
Investor Appeal: ESG (Environmental, Social, Governance)-oriented funds currently oversee $41 trillion worldwide, with privacy emerging as a prominent "S" metric.
Talent Recruitment: 64% would prefer companies with sound ethical policies, e.g. data stewardship.
For corporate lawyers, there are possibilities here to reinterpret mergers in trust-building exercises. Imagine advising a private equity firm on how to acquire a Québec data analytics company. By following Law 25’s
PIA process, the company could:
Identify risks such as customer profiling algorithmic biases.
Suggest mitigations such as third-party fairness audits.
Market the sale as "ESG-certified," and mobilize impact investors.
This isn’t idealism—it’s strategy. Apple’s privacy-oriented brand, focusing on features such as App Tracking Transparency, enabled it to secure a record-breaking 58% share in the Canadian smartphone market in 2023.
A Philosophical Link: Rousseau and Artificial Intelligence
At its core, the GDPR-Law 25 divide is a reflection on a philosophical debate spanning centuries: the greater good and individual liberty. The GDPR is based on Enlightenment philosopher Immanuel Kant’s maxim (“Act only according to that maxim whereby you can, at the same time, will that it should become a universal law”). Law 25 is a reflection on Jean-Jacques Rousseau’s general will—that laws are about the greater good, not necessarily about liberty.
This distinction is important in mergers. The GDPR looks at users in a vacuum; Law 25 looks at them in a fabric of a broader society. Suppose a merger is combining information about public transport. It could benefit the individual commuters (by streamlining routes) but could harm marginalized groups in the event of hikes in fares on low-income groups. Law 25’s PIAs require firms to weigh these outcomes.
Lawyers as Guardians of the Social Fabric
For aspiring corporate lawyers, this is not about taking sides—it’s about spanning paradigms. The key steps are:
Ethical Due Diligence: Expand lists with such questions as, Would a merger unfairly impact vulnerable groups?
Collaborative Governance: Partner with NGOs or community boards to assess merger impacts, building legitimacy and trust.
Transparency as a brand: Ask clients to share redacted PIAs, showcasing a commitment to openness.
In 2023, a Toronto financial technology firm adopted such a strategy in the aftermath of a takeover of a Montréal payments platform. By publishing voluntarily its PIA results and collaboratively creating a board on data ethics with local consumer groups, the company saw a boost in Québec registrations by 22%.
Beyond Compliance, Towards Legacy
GDPR revolutionized privacy protection, but Law 25 redescribes privacy’s role. In a world where technology consolidation makes realities, Québec’s legislation not only asks "Is this legal?" but "Is this right?"
For lawyers, there is no added value. By guiding clients through Law 25’s ethic landscape, not only are you closing business-you are constructing legacies based on trust. In Rousseau’s words, "Good laws lead to the making of better ones." In Québec, such laws already exist.
Ethical Solutions - From Philosophy to Boardroom Strategy
In 2023, a Montréal technology company made headlines not because they received a billion-dollar offer but because they spurned a high-figure offer from a Silicon Valley giant. Why? The acquirer would not agree to "privacy by design" safeguarding users' information. The story is not the norm but is a harbinger: firms and lawyers are discovering that doing business ethically is not a constraint but a spur. Spanning Québec’s Law 25, philosophical insights, and global precedent, the following is my proposed guidebook on actionable corporate lawyers' approaches to embedding privacy in mergers and capitalizing on ethical models.
1. Privacy by Design: The "Speech Without Fear" in Due Diligence
Michel Foucault’s later life’s work honored parrhesia—the willingness to say difficult truth to power. It is a message corporate lawyers need to pass on to clients: challenging them to frame privacy not as a compliance hurdle but a foundation of value generation.
Reinventing Due Diligence
Traditional M&A lists are financial, IPs, and regulatory ticks. Law 25’s Privacy Impact Assessments (PIAs) demand a new level: auditing ethically. If advising a client considering a Québec AI company. A privacy-by-design process would ask:
How can anonymised information still drive innovation? (e.g., with synthesized datasets simulating users without exposing identities)?
Can differential privacy techniques (inserting statistical "noise" into databases) balance analytics and anonymity?
Does the targeted company’s information governance align with Québec’s "principle of good faith"?
Case Study: The Proactive PIA
In 2023, a Toronto e-commerce business acquired a Montréal rewards app. Lawyers saw a risk in combining purchasing histories with location information: exposing users to predatory advertising. The solution? The acquiror anonymized location identifiers and lowered retention times to 90 days. Result? Post-acquisition retention increased by 15%, with users praising the "open transition."
Philosophy in Practice
Aristotle's phronesis (practical wisdom) is guiding this strategy. Privacy by design is not idealism—it is principle and profit in harmony. Apple not data-mine-ing iCloud for advertising (despite having a whopping $80B in annual services revenue), say, has made it a privacy leader with a whopping 58% market share in Canada's smartphones.
2. Data Trusts: Québec’s Spirit of Cooperation and Innovative Tech
Québec’s history of cooperatives—from Desjardins credit unions to agricultural collectives—offers a model for rethinking data ownership. Enter data trusts: legal structures where independent trustees steward data on behalf of users, ensuring it’s used ethically.
How It Operates
Imagine a hypothetical merger with a U.S. health technology company and a Québécois telemedicine startup. Instead of sending patient information over to the acquiror, the startup places it in a trust with oversight by doctors, patients, and ethicists. The trust makes anonymised insights available under licence to the purchaser for R&D but blocks commercial exploitation (e.g., selling information to insurance firms).
Global Precedents
Barcelona: The "sovereign data" scheme in Barcelona empowers residents to choose how their information is used in smart-city projects.
UK NHS: Health data trusts enable medical research while safeguarding patient anonymity.
Philosophical Roots
Nobel laureate Elinor Ostrom's work on the governance of common resources illustrates that tragedy-of-the-commons scenarios can be prevented by collective ownership. Projecting this onto data, philosopher Carissa Véliz (Oxford) argues trusts align with Foucault's "ethics of care," in which stewardship is prioritized over extraction.
Law 25’s Role
Québec's "privacy by default" requirement (Section 8) aligns well with trusts. By requiring user opt-ins to share data, Law 25 renders trusts not just ethical but marketable. A 2023 McKinsey survey found 63% of consumers prefer those brands that offer data stewardship options.
3. Ethical leverage: Leveraging Privacy into Profits
For lawyers, the message is not about preaching about ethics—it’s about how ethics drive expansion.
A. The ESG Advantage
ESG (Environmental, Social, Governance) investing now tops $41 trillion globally. Privacy metrics are becoming a key “S” factor. By framing mergers with privacy safeguards as ESG-compliant, lawyers can attract impact investors.
Example: A 2023 merger between a Québec clean-tech firm and a European energy giant highlighted Privacy Impact Assessments (PIAs) in its ESG report, securing $500M in green financing.
B. Brand differentiation
In a competitive market, privacy is a USP. Signal vs. WhatsApp is a case in point: Signal's insistence on not monetizing data has driven a 1200% user growth since 2020, in spite of $0 in advertising.
C. Risk Mitigation
Law 25 fines are as high as 6% of worldwide revenue. Proactive privacy is not only a matter of ethics—it’s a financial protection. When a major retailer didn't do PIAs ahead of a 2022 merger, Québec’s regulators imposed a fine and mandatory ethics training of $4.2M.
4. The Lawyer’s Toolkit: Establishing Credibility with Credibility
Step 1: Inform Clients
Host workshops on Law 25’s business advantages. Provide case studies such as Microsoft’s $20B investment in Québec’s AI market with a focus on hybrid compliance with GDPR-Law 25 in order to secure EU-Canada clients.
Step 2: Work Together with Communities
Partner with Québec’s Commission d’accès à l’information (CAI) and civil societies in order to frame mergers.
Example: One such merger in 2023 involved a citizen advisory board reviewing how data was utilized—one that increased media attention and trust among the population.
Step 3: Market Ethical Innovation
Draft press releases with privacy protection features. Example: "ABC Tech’s acquisition by XYZ Corp includes Québec’s first-ever data trust, with users in control."
Lawyers as Architectural Designers of Tomorrow
Foucault once said, "Freedom is practice." And corporate lawyers, what that would mean is practicing a different kind of merger—one in which privacy is not removed but enriched. Québec’s Law 25, based on civil laws and PIAs in advance, is the tool. Philosophy is the vision.
By championing privacy by design and data trust, lawyers not only protect clients from risk but position them ahead of a movement where principle and profit are not mutually exclusive. In the words of Québec’s Civil Code, a good faith is not a clause; a good faith is a legacy.
Redrafting the Power Playbook in the Digital Era
In 1787, Bentham designed the panopticon to optimize surveillance. In 1975, Michel Foucault warned us that it had been rendered the model for modern society. In 2024 today, mergers of technologies are making the model a worldwide reality—one in which corporations hold unprecedented sway over our digital futures. But, as this essay has shown, the story doesn't end there. Québec’s Law 25, with civil law roots and forward-facing ethics, draws a revolutionary alternative picture: mergers not just extracting value but creating value by safeguarding human dignity. For corporate lawyers of tomorrow, this isn't just a legal imperative—it's an opportunity to reimagine what power looks like.
The Panopticon Reborn: Surveillance Gives Way to Stewardship
Foucault’s panopticon was not only not a prison—it was a metaphor for how power in secret exercises itself on behalf of itself. Tech consolidations, such as Google-WhatsApp and Google-Fitbit, have armed themselves with such ambivalence, treating privacy as a currency bargained in boardroom backrooms. But in the case of Québec’s Law 25, we see that ambivalence is a choice, not a fact. By mandating Privacy Impact Assessments (PIAs) and "privacy by design," Law 25 brings consolidations out of the backrooms and forces corporations to answer a simple question: Does the merger serve humanity, or stockholders only?
The answer is not hypothetical. When a hypothetical Montréal AI business is sold, Law 25’s PIAs would compel the acquiror to anonymise information or invest in digital literacy programmes—one sale a trust-building exercise. It is not a matter of idealism; it is pragmatism. The International Association of Privacy Professionals said in a 2023 research paper that organisations with good privacy policies retain customers 2.3 times longer and close business 34% faster.
Québec’s Legacy: The Civil Law as a Moral Compass
Québec’s legal system based on the doctrine of good faith in the Civil Code is a model in striking a balance between gain and ethics. Breaking with precedent-oriented common law, civil law is based on equity—a philosophical commitment to fairness endorsed by such intellectual titans as Jean-Jacques Rousseau as the foundation of social compacts. Law 25 is such a mindset and views privacy not as a subjective right but a shared obligation.
This distinction is significant. When GDPR fines Meta $1.3 billion for mishandling data, it punishes past harm. When Law 25 mandates Privacy Impact Assessments (PIAs), it prevents future harm.
For corporate lawyers, this shift from punishment to prevention is transformative. Imagine advising a client to invest in differential privacy tools not because they have to, but because it positions them as pioneers in a $10 trillion AI market—where trust is the ultimate currency.
The Corporate Lawyer’s New Mandate
The future is not in boardrooms but in the crossroads of trust among humans, law, and philosophy. Lawyers have three mandates:
Reframe Risk: Privacy is not a risk—it’s a measurement of innovation. Companies that overlook it risk becoming the next Cambridge Analytica.
Champion Transparency: Leverage Law 25’s Privacy Impact Assessments (PIAs) to turn mergers into a conversation with the public. Publish redacted reports, hold town halls, and co-produce solutions with users.
Lead with Legacy: The deals we negotiate today will shape the digital world of tomorrow. Will they be remembered as reckless land rushes on information, or as the foundations of a better world?
Apple’s ascent to a $3 trillion valuation, driven by privacy-centric branding, proves that ethics and enterprise are not foes. Québec’s thriving AI sector, which attracted $20 billion in foreign investment in 2023, demonstrates that regulation can fuel innovation.
Final Word: Power in Perspective
Michel Foucault ended Discipline and Punish with a challenge: "Where there is power, there is resistance." But resistance is not rebellion for corporate lawyers—it is the quiet subversion of power’s rules.
Each merger built on Law 25’s ethical framework, every PIA that prioritizes people over profit, every data trust that returns control to users—these are acts of resistance.
Québec’s Civil Code begins with a promise: "Every person is inviolable and is entitled to respect for their privacy." In a world where technological consolidation increasingly reduces individuals to mere data points, such a promise is revolutionary.
We, as future lawyers, uphold this promise not by rejecting power, but by redefining it. The panopticon’s lights do not need to stay on. Under Law 25, we are free to turn them off.
Remember: the most important deals are not just market-movers—they are humanity-movers.
Québec’s legal tradition gives you the tools. Philosophy gives you the vision. The practice is what remains.
Bonne chance, et à la vôtre—to a future where power serves people. ????
References
Bentham, J. (1787). Panopticon; or, The Inspection-House.
European Data Protection Board (EDPB). (2021). WhatsApp Ireland Ltd. GDPR Fine.
European Commission. (2020). Google/Fitbit Merger Approval.
Floridi, L. (2013). The Ethics of Information. Oxford University Press.
Foucault, M. (1975). Discipline and Punish: The Birth of the Prison. Vintage Books.
Foucault, M. (2008). The Birth of Biopolitics: Lectures at the Collège de France, 1978–1979. Palgrave Macmillan.
Government of Québec. (2023). Act to Modernize Legislative Provisions Respecting the Protection of Personal Information (Law 25).
McKinsey & Company. (2023). The Value of Trust: How Privacy Drives Customer Loyalty.
Narbonne, J.-M. (2012). Ethics and the Quebec Civil Code: Aristotelian Perspectives. Laval University Press.
Ostrom, E. (1990). Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge University Press.
Taylor, C. (1994). Multiculturalism: Examining the Politics of Recognition. Princeton University Press.
Zuboff, S. (2019). The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. PublicAffairs.
Global Sustainable Investment Alliance (GSIA). (2022). Global Sustainable Investment Review.
Cisco. (2023). Consumer Privacy Survey.
Edelman Trust Barometer. (2023). Trust in Technology.
Civil Code of Québec, LRQ, c CCQ-1991, Article 1375.
Rousseau, J.-J. (1762). The Social Contract.
Véliz, C. (2020). Privacy is Power: Why and How You Should Take Back Control of Your Data. Bantam Press.
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