If personal data is actually a commodity, can you buy some from another person, as if that person were a fruit stand? Would you want to?
Not yet. Or maybe not really.
Either way, that’s the idea behind the urge by some lately to claim personal data as personal property, and then to make money (in cash, tokens or cryptocurrency) by selling or otherwise monetizing it. The idea in all these cases is to somehow participate in existing (entirely extractive) commodity markets for personal data.
ProjectVRM, which I direct, is chartered to “foster development of tools and services that make customers both independent and better able to engage,” and is a big tent. That’s why on the VRM Developments Work page of the ProjectVRM wiki is a heading called Markets for Personal Data. Listed there are:
So we respect that work. We are sure to learn from it. But we also need to respect the structural problems it faces.
The first problem is that, economically speaking, data is a public good, meaning non-rivalrous and non-excludable. (Rivalrous means consumption or use by one party prevents the same by another, and excludable means you can prevent parties that don’t pay from access to it.) Here’s a table from a Linux Journal column I wrote a few years ago:
|Rivalness||YES||Private good: good: e.g., food, clothing, toys, cars, products subject to value-adds between first sources and final customers||Common pool resource: e.g., sea, rivers, forests, their edible inhabitants and other useful contents|
|Rivalness||NO||Club good: e.g., bridges, cable TV, private golf courses, controlled access to copyrighted works||Public good: e.g., data, information, law enforcement, national defense, fire fighting, public roads, street lighting|
The second problem is that nature of data as a public good also inconveniences claims that it ought to be property. Thomas Jefferson explained this in his 1813 letter to Isaac MacPherson:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation
Of course Jefferson never heard of data. But what he says about “the thinking power called an idea,” and how ideas are like fire, is important for us to get our heads around amidst the rising chorus of voices insistenting that data is a form of property.
The third problem is that there are better legal frameworks than property law for protecting personal data. In Do we really want to “sell” ourselves? The risks of a property law paradigm for personal data ownership, Elizabeth Renieris and Dazza Greenwood write,
Who owns your data? It’s a popular question of late in the identity community, particularly in the wake of Cambridge Analytica, numerous high-profile Equifax-style data breaches, and the GDPR coming into full force and effect. In our view, it’s not only the wrong question to be asking but it’s flat out dangerous when it frames the entire conversation. While ownership implies a property law model of our data, we argue that the legal framework for our identity-related data must also consider constitutional or human rights laws rather than mere property law rules…
Under common law, ownership in property is a bundle of five rights — the rights of possession, control, exclusion, enjoyment, and disposition. These rights can be separated and reassembled according to myriad permutations and exercised by one or more parties at the same time. Legal ownership or “title” of real property (akin to immovable property under civil law) requires evidence in the form of a deed. Similarly, legal ownership of personal property (i.e. movable property under civil law) in the form of commercial goods requires a bill of lading, receipt, or other document of title. This means that proving ownership or exerting these property rights requires backing from the state or sovereign, or other third party. In other words, property rights emanate from an external source and, in this way, can be said to be extrinsic rights. Moreover, property rights are alienable in the sense that they can be sold or transferred to another party.
Human rights — in stark contrast to property rights — are universal, indivisible, and inalienable. They attach to each of us individually as humans, cannot be divided into sticks in a bundle, and cannot be surrendered, transferred, or sold. Rather, human rights emanate from an internal source and require no evidence of their existence. In this way, they can be said to be intrinsic rights that are self-evident. While they may be codified or legally recognized by external sources when protected through constitutional or international laws, they exist independent of such legal documents. The property law paradigm for data ownership loses sight of these intrinsic rights that may attach to our data. Just because something is property-like, does not mean that it is — or that it should be — subject to property law.
In the physical realm, it is long settled that people and organs are not treated like property. Moreover, rights to freedom from unreasonable search and seizure, to associate and peaceably assemble with others, and the rights to practice religion and free speech are not property rights — rather, they are constitutional rights under U.S. law. Just as constitutional and international human rights laws protect our personhood, they also protect things that are property-like or exhibit property-like characteristics. The Fourth Amendment of the U.S. Constitution provides “the right of the people to be secure in their persons” but also their “houses, papers, and effects.” Similarly, the Universal Declaration of Human Rights and the European Convention on Human Rights protect the individual’s right to privacy and family life, but also her “home and correspondence”…
Obviously some personal data may exist in property-form just as letters and diaries in paper form may be purchased and sold in commerce. The key point is that sometimes these items are also defined as papers and effects and therefore subject to Fourth Amendment and other legal frameworks. In other words, there are some uses of (and interests in) our data that transform it from an interest in property to an interest in our personal privacy — that take it from the realm of property law to constitutional or human rights law. Location data, biological, social, communications and other behavioral data are examples of data that blend into personal identity itself and cross this threshold. Such data is highly revealing and the big-data, automated systems that collect, track and analyze this data make the need to establish proportional protections and safeguards even more important and more urgent. It is critical that we apply the correct legal framework.
The fourth problem is that all of us as human beings are able to produce forms of value that far exceed that of our raw personal data. Specifically, treating data as if it were a rivalrous and excludable commodity—such as corn, oil or fruit—not only takes Jefferson’s “thinking power” off the table, but misdirects attention, investment and development work away from supporting the human outputs that are fully combustible, and might be expansible over all space, without lessening density. Ideas can do that. Oil can’t, combustible or not.
Put another way, why would you want to make almost nothing (the likely price) from selling personal data on a commodity basis when you can make a lot more by selling your work where markets for work exist, and where rights are fully understood and protected within existing legal frameworks?
What makes us fully powerful as human beings is our ability to generate and share ideas and other goods that are expansible over all space, and not just to slough off data like so much dandruff. Or to be valued only for the labors we contribute as parts of industrial machines.
Important note: I’m not knocking labor here. Most of us have to work for wages, either as parts of industrial machines, or as independent actors. There is full honor in that. Yet our nature as distinctive and valuable human beings is to be more and other than a source of labor alone, and there are ways to make money from that fact too.
Example: I don’t make money with this blog. But I do make money because of it—and probably a lot more money than I would if this blog carried advertising or if I did it for a wage. JP and I called this way of making money a because effect. The entire Internet, the World Wide Web and the totality of free and open source code all have vast because effects in money made with products and services that depend on those graces. Each are rising free tides that lift all commercial boats. Non-commercial ones too.
Which gets us to the idea behind declaring personal data as personal property, and creating marketplaces where people can sell their data.
The idea goes like this: there is a $trillion or more in business activity that trades or relies on personal data in many ways. Individual sources of that data should be able to get in on the action.
Worse, surveillance capitalism’s business is making guesses about you, so it can sell you shit. On a per-message basis, this works about 0% of the time, even though massive amounts of money flow through that B2B snakeball (visualized as abstract rectangles here and here). Many reasons for that. Here are a few:
- Most of the time, such as right here and now, you’re not buying a damn thing, and not in a mood to be bothered by someone telling you what to buy.
- Companies paying other companies to push shit at you do not have your interests at heart—not even if their messages to you are, as they like to put it, “relevant” or “interest based.” (Which they almost always are not.)
- The entrails of surveillance capitalism are fully infected with fraud and malware.
- Surveillance capitalism is also quite satisfied to soak up to 97% of an advertising spend before an ad’s publisher gets its 3% for pushing an ad at you.
Trying to get in on that business is an awful proposition.
Yes, I know it isn’t just surveillance capitalists who hunger for personal data. The health care business, for example, can benefit enormously from it, and is less of a snakeball, on the whole. But what will it pay you? And why should it pay you?
Won’t large quantities of anonymized personal data from iOS and Android devices, handed over freely, be more valuable to medicine and pharma than the few bits of data individuals might sell? (Apple has already ventured in that direction, very carefully, also while not paying for any personal data.)
And isn’t there something kinda suspect about personal data for sale? Such as motivating the unscrupulous to alter some of their data so it’s worth more?
What fully matters for people in the digital world is agency, not data. Agency is the power to act with full effect in the world. It’s what you have when you put your pants on, when you walk, or drive, or tell somebody something useful while they listen respectfully. It’s what you get when you make a deal with an equal.
It’s not what any of us get when we’re just “users” on a platform. Or when we click “agree” to one-sided terms the other party can change and we can’t. Both of those are norms in Web 2.0 and desperately need to be killed.
But it’s still early. Web 2.0 is an archaic stage in the formation of the digital world. Surveillance capitalism has also been a bubble ready to pop for years. The matter is when, not if. The whole thing is too absurd, corrupt, complex and annoying to keep living forever.
So let’s give people ways to increase their agency, at scale, in the digital world. There’s no scale in selling one’s personal data. But there’s plenty in putting better human powers to work.
If we’re going to obsess over personal data, let’s look instead toward ways to regulate or control over how our personal data might be used by others. There are lots of developers at work on this already. Here’s one list at ProjectVRM.
- An outstanding twitter thread led by John @wilbanks.
- ‘ excellent post,
- Elizabeth Renieris (@HackylawyER)’s essay, Do we really want to sell ourselves?
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