My Data Belongs to Everyone But Me

I signed up for another online Platform as a Service yesterday. Or maybe it was a subscription to something I used to buy as a product. Or maybe it was some medical bill I paid online. It does not matter. I signed up for something online.

I didn’t read the terms and conditions, because I can summarize every T&C of virtually everything that asks me to create an account (or login with Google, Facebook, Apple….)

1. We’ll collect as much data about you and what you do online and everywhere else, as much possible, by any means we can come up with now and forever.
2. We’ll use your data as we see fit, however we will only sell your data to 3rd parties that pay us for it.
3. There are some laws that set limits on item #2, but you agree to let us ignore those laws.
4. Fuck you if you don’t like it.

In the United States, there was a Supreme Court case from that is the basis for something called the 3rd party doctrine. It’s worth a read, but to summarize, if you give data to a 3rd party, you have no “reasonable expectation of privacy” for that data. “Giving” data can (and does) mean buying something, selling something, going somewhere, living somewhere, doing something. Basically, by existing in any other way than living in a shack in the woods and not interacting with modern society, you’re generating data that you don’t own and can’t realistically access or manage. Try getting an error on your credit report fixed in any rational amount of time.

In many ways, I think this has happened because as data digitized over the course of the end of the 20th century, the various core principles that underlay very old and fundamental legal concepts like property rights didn’t fare well. This includes intellectual property rights like patents and copyright, which, ultimately, you could trace back to a physical thing or at least the idea of how to make a physical thing. The US Constitution, Article I, Section 8, clause 8, specifically says that “Authors and Inventors [have] the exclusive Right to their respective Writings and Discoveries”

I’ll suggest that I — me — Martin am the “Author and Inventor” of my data, because without me living in a society, there would be no data about me to monetize. But I can’t patent myself, nor can I copyright the data-halo I have. The 4th Amendment gives me some protections, but it too is contravened by the terms and conditions of everything (per condition #4, above).

The basic legal constructs upon which society is built have to be more realistic that my data-halo, which has objective commercial and social value, and which is used by various machines to ascertain and decide on many things about me — is actually me, or at least my property, or perhaps some new idea between identity and property for which we’ve not really come up with the nomenclature yet. Whatever this meta-me is, it needs more than the our increasingly creaky Constitution can handle.