Who owns information?

The participants in the following conversation are:

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Mark Romaniw is a graduate of George Washington University and holds a Master's degree in Political Science. His main interests are international politics and political theory.

Daniel Thomas Mollenkamp is an independent journalist, who has filed reportage from three continents. He is also on the board of Abukloi, which runs a secondary school in Rumbek, South Sudan.

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Mark:

I think we're at a point where technology -- including digital media, online communication, computing power, and the ability to manipulate chemistry and biology -- are forcing us to reassess how we think about property rights and the broader issue of what is public and what is private. I think we're seeing business and government moving for advantage in these new conditions -- business more aggressively, government more haphazardly -- and that's to the detriment of both consumers and to the free market, which benefits not just consumers but business and government as well.

 

I want our society to take a look at these issues and decide them in a way that's good for the consuming public and that maintains the free market. And I think now's a good time to do it -- some of the things I see going on aren't today's problems, but they have the potential to become tomorrow's problems if we're not vigilant.

 

I'm concerned with three general types of information: information that constitutes your social and economic identity (a name, a Social Security number, a credit rating, banking information, etc.); information about your behavior and preferences (who you talk to, where you shop, etc.); and cultural and scientific information (for example, stories and music, on one hand; pharmaceuticals and genetically modified organisms, on the other).

 

In all of those areas, technology has developed to the point where the ways we used to look at ownership and the public/private divide either don't apply or are a poor fit. I see two main problems, both to the detriment of the consumer: first, both business and government are gathering enormous amounts of data, pushing the boundaries of privacy; second, business is trying to roll back consumers' ability to own information, specifically by moving away from selling physical artifacts that contain information to selling one-time licenses to access information. A third, overarching issue is the fact that no information is really secure, even if we have a clear idea of who owns it.

 

Daniel:

On reflection, I object to some of the assumptions implicit in this analysis. I wouldn't sign on to your petition, in other words. Before enumerating, I'd like to offer the obligatory flattery since there is a logic to your commentary. It's analysis I've heard before. 

 

The fundamental point that separates us, I think, is your claim that the private/public distinction is fading from relevance. It's not even that I disagree with this point, actually, I don't think you take it far enough. It seems that the problem you're grasping at is that private corporations have found a way to privatize public goods, putting a corporate "tax" on what would normally be thought of as "public" goods. The difference, of course, is that this impost doesn't go at all to reinforce public infrastructure, or help the public generally (unless you have some pseudo-religious belief in Voodoo economics or the Invisible Hand; or probably both). Instead, it flows to corporate backers and boards. 

 

More fundamentally, I object to your argument's assumption that the free market is the solution to the problem, and would object to this even if I accepted your formulation of the problem, which I don't. Actually, the problem you're grasping at arose in the freest market that exists. Also, I think all players in the market seem to preference this solution since it gives "free" (it's not really free, but it has no monetary payments so the cost is hidden) goods to consumers (free registration for email, free Google searches, free social networking, free news articles), and it gives massive profits to corporations. Moreover, the structure of the market incentivizes this. And that's really the problem. 

 

So why should I believe that making the market "more free" (whatever I even take that to mean) will solve this? In fact, I know people who would accept your diagnosis and argue that the solution lay in moving our market to a more balanced (more socialistic) system. I likewise reject this proposed "solution." Traditional notions of privacy have not just been stretched or pushed but dissolved. And the security issue you mention is very real. 

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The other dimension to your comments, that property rights need to be "rethought" is correct, I think, but vague. Not to mention that we're talking about global forces here. It remains unclear to me how a single nation could reign in a behemoth like, say, Google, which transcends national boundaries, without incurring a massive cost to themselves. 

 

This question is mirrored at the federal and state level. Some of the potential domestic solutions to this will presumably violate state sovereignty, just as they might violate national sovereignty. Does this require a complete transition of the national or international order? So not only are we forecasting a potential future problem (which is more speculative than we might like), but I'm not sure what the proposed solution to that problem would even look like. We're in vague and hypothetical territory here, which would need to contend with a tangled mess of intricate and esoteric laws which, I'd wager, neither of us understands. It might even require complete restructuring. In your view, then: how does national sovereignty play into this? And, do you consider data to be a form of commerce or a good?

 

Mark:

I do, in fact, believe in the ability of a free market to generate prosperity, but I recognize that it's a system that works only if business, consumers, and government balance against each other. I'd call that "management," but I realize that managing a free market seems like an oxymoron and I don't want to be misunderstood as favoring government intervention and regulation.

 

Many of the problems we see -- high prices, low wages, high unemployment, low economic mobility, low growth, greater concentration of wealth, decreased competition -- result from one of those three parties getting greedy. If that party can't moderate their greed, then the others need to step in to temper it.

 

The problem is, they don't. Instead of self-restraint or balancing, we tend to see business and government working together to exploit consumers, or one of the two trying to co-opt the other. That doesn't preserve the free market, hurting consumers in the short term and starving government and stagnating business in the long term.

 

In all things, I think the first question must be, "How can we solve this problem in a way that doesn't kill the free market?"

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To that effect, I'm not sure I would characterize the free market as a solution to the problem of the commodification of information. Rather, I want to address that problem in a way that doesn't spoil the free market. And for me, that's an increasingly urgent issue because that problem is right now being solved in ways that unbalance -- and therefore wreck -- the market.

 

I'm not sure we'll agree on this understanding of market economics, but this is the position from which I'm arguing.

I do see information as property, as a commodity to be owned or sold. If a corporation wants information about me, they should pay me for it. Likewise, if government wants information about me, they shouldn't be able to get it without my consent, or without sufficient due process.

 

What I see happening now, though, is that my ability to own information is being limited, both by government and by business; information I consider mine is being taken from me while at the same time I'm only able to access or rent information produced by others. Whoever owns, manages, analyzes, or profits from my information -- it isn't me.

I think you're right that this is an issue that transcends national borders but I don't think that militates against seeking a domestic solution first. If we develop and apply clear principles at home, we can seek to have them adopted abroad.

 

The international dimension is particularly important, I think, if we expand who we think of as actors in the market. I'm focusing on three -- government, business, and consumers -- but I haven't touched on hostile foreign actors yet. They're a real, current threat, but to sufficiently address them, I think we need a firm set of principles to guide us. 

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Daniel:

I understand the position from which you’re arguing, RE the market. Though I believe I have registered some disagreement to it, for the record, so to speak. As for the logic of your concerns, the main issue is whether or not the contradiction is fundamental or not. I think you’ve limited your thinking on these matters by privileging the need to “avoid killing the free market” without specifying at all what that even means. Moreover, as I’ll enumerate in a minute, I think you’re complicit, from the structure and logic of the market, in the problem which you’re saying is limiting your capacity for ownership.

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But first, what is your actual proposal? If what you’re saying is that you have these concerns: OK. These trends are “concerning”, which is presumably why you proposed to debate this. But— if all you’re saying is that this is concerning and that you think it needs a rethink in the market structure— I’m not hearing a debatable proposal in your comments. 

 

For clarification, I feel impelled to ask: (a) I initially took your comments to be suggesting that the solution to this lay in re-establishing the preeminence of the free market. If that’s wrong, then what exactly are you proposing? (b) You say you think data is a salable commodity. Well, under current market construction, consumers have traded it for goods and services, something I was attempting to suggest earlier. That’s why our media is often “free”, it’s why our social media is “free”, etc. But given your “concerns”, you must also hold that this transaction is not (let’s use a charged word) “fair”. (c) Why is the question of private ownership not merely a shibboleth in your view?

I should also stipulate (for further clarification) that we should leave off the foreign actors angle. It’s too much for a single conversation, and having it would require more agreement than I’m willing to sign on for. As would the baseline question of market construction (without a specific proposal to hang it on). We need to hone in on a particular proposed solution, I think, or we’ll tangle ourselves in a web of complications and half-understood speculations.

 

Here’s a paragraph for you to work with in formulating your response:

 

Obviously, what we're talking about is a vicious cycle: as big corporations take ownership of personal data, a scarce resource, they are able to improve methods and technologies which allow them to accrue more of that resource. It's approaching a monopoly in effect, if not in semantic detail. Given the amount that small governments have become reliant on the largess of these corporations--take the city where Apple recently planted a shiny new building on that gilded hill, for example. And that the tentacles of these industries have wrapped around the culture, reinforced by lobbying, and socially justified by the amount of "altruism" they engage in. (Let's be clear: private corporations exist for private profit.) Then we might see this as a corporatization of the market space, and indeed our entire society. Indeed, there were bills recently introduced in Congress to privatize public lands, a further step in privatizing the public sphere. The rot is everywhere, and the private-public distinction hasn't faded, rather the public good has been consumed by private interests. 

The question of this debate— who owns information?— is not a technical one, one that a lawyer might answer; that is not within our expertise and we would add nothing of value to that conversation. But it is a procedural question, a political one. Who should own information? For that, "Is tech an existential threat," which was the name of a recent speech on a similar topic, might be a better fit. Your statements, both of them actually, presume the answer to that question is the consumer. Technically debatable. But fine. For the purposes of debate, I'll grant that. What I want to hear is how you propose to transition to an incentive structure whereby consumers can retain "ownership" of personal data within the market structure which we have, which has led to the creation of this problem in the first place. Or what elements of that market structure you propose to reform. This is the tension I was trying to get at in my last statement. 

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So I reiterate my earlier point: your call to “rethink” these things is vague to the point of meaninglessness.

 

The difference between us is very small. If I understand your position correctly, then the difference between us primarily rests in your claim (implicit in the first statement; semi-voiced in the second) that the market is easily capable of containing these mounting contradictions. I suggest that it might not be. Or at least it would require a transformation of the structure around the market akin to the anti-monopolization programs of yore. 

 

I think the rougher and tougher questions at play will have to do with biological information. The case of Henrietta Lacks is a good example of how this conversation has become relevant already, and why this is as much a political question as anything else, and it suggests the stakes at play here. With tech like Crispr, or the coding of the human genome generally, the very essence of our beings has been reduced to data. We are, in a very real manner of speaking, just data in physical form. What’s the difference between me and a lobster? Just a few lines of code, so to speak.

 

But this puts the question in a personal vein. Is some data not salable (is some data “inalienable”, in other words)? I put the question to you. Presumably, there is no market-driven reason for this view. So the question is twofold: what’s your answer and from where do you derive your answer to this question? 

 

In my view, the answer will likely end up being a resounding “no”. Whether or not this is a moral answer, I’m not so sure. But for the advancement of disease-fighting, for the slow-down of the aging process, for the continued eradication of suffering caused by a lack of efficiency, it’s necessary. But, a rather large hindrance, this will require systematized barbarity. It will weaponize systematic thinking and ethics-related thought experiments. A recent example posed to me: a turn on the trolly problem. Should automated, driverless cars sacrifice their passenger by swerving off the road, say, to save another passenger(s)? On what basis should the determination be made? Germany (I think it was Germany) has recently attempted to set a priori limits to the basis on which these kinds of decision can be made. It remains to be seen whether or not this is viable. But calling for a rethink doesn’t quite cut the mustard. 

 

There are still other problems we might not be able to address, too. Like the absorption of other industries by the big behemoths. Amazon buying Whole Foods is a prime example of this. Ultimately, this kind of thing threatens to automate jobs and establish mass and sustained unemployment. We also won’t be able to address the now unstable definitions of consciousness or personhood which have far-reaching implications. Though, I will take the opportunity to point out that Saudi Arabia (of all places!) granted citizenship to a robot recently, the first country to do so. Because that should be more well known. But that’s perhaps enough of a data dump for one response. Tag, you’re it!