At a recent Senate hearing on online privacy abuses, Sen. John Kennedy, R-Louisiana, announced his intention to introduce legislation giving consumers a property right to their data. The hope is that providing consumers a property right in the data they create online will give them a way to control the online collection, sharing and monetization of their data.
I am unsure whether vesting property rights is the best mechanism for protecting privacy, but it’s an interesting and bipartisan idea and one that I have been trying to wrap my head around since Jaron Lanier explored the idea of data as currency/labor right in his 2013 book, “Who Owns the Future.”
Property rights have always been the foundation of strong economies; letting individual owners and competitive forces determine how property is used and traded is fundamental to individual liberty and efficient markets. But there’s a catch.
If property rights are the model, then Silicon Valley’ dismal track record on intellectual property rights is a giant red flag that simply vesting property rights is of little consequence to the extent that such property rights are essentially unenforceable — particularly for individuals. Since the dawn of the internet, notwithstanding their legal rights, creators and innovators have had to endure an avalanche of illegally available copies of their works online.
Thanks to outdated and inadequate laws like the Digital Millennium Copyright Act’s “notice and takedown” system, dominant internet platforms are incentivized to ignore this theft. Under these laws, all internet platforms are essentially required to do is accept notices of infringing material and take down the specific illegal copies cited in the notice.
Like puppets, they passively sit until someone pulls their strings. At the same time, the law gives creators the impossible fool’s errand of finding each illegal copy of their work online and sending in the required notice — all while hundreds or thousands more copies pop up in its place.
Thus with respect to these existing property rights, creators have been deprived of any meaningful ability to control or defend them, while platforms profit massively from exploiting practical control over the entire ecosystem. Why do we think consumer data “property” rights would be any easier to enforce?
Dominant online platforms, of course, think everything is going great. For instance, the Internet Association calls the notice and takedown system “sensible and efficient,” a puzzling contention given that Google alone processes billions of takedown requests from creators — who are forced to endure the endless and fruitless game of digital “Whack-a-Mole” to protect their work.
The problem is rooted not in the idea of “property,” but in the underlying incentives created by outdated laws and the cavalier attitude Silicon Valley takes toward its responsibilities in the online space.
To the tech giants, every pixel on the internet is just a “resource” ripe for exploitation, whether it’s a consumer surfing the web, a filmmaker promoting her movie, or a political campaign trying to reach the public. They talk about freedom but have permitted rampant online piracy, which has decimated cultural industries.
Just recently returning to growth, between 2001-2015 U.S. recorded music sales plummeted from $14 billion to $7 billion, causing devastating job losses, including an 80 percent plunge in working songwriters in the Music City of Nashville over 15 years.
And the newspaper industry has been decimated by Google and Facebook, bleeding 26 percent of jobs for journalists in a decade. We’ve seen how political operatives exploited Facebooks and Google’s social networks and consumer data-powered ad-targeting tools to sow misinformation and undermine our elections. And in the recent Judiciary Committee hearing Sen. Josh Hawley, R-Missouri, grilled Google’s privacy counsel about the inability of consumers to be free from geolocation data tracking — even if they’ve toggled off all location-data settings.
Until recently it was quite fashionable to loftily ponder how the internet has rendered traditional notions of privacy and property obsolete — all in the name of “innovation.” But as an avalanche of harms facilitated or amplified by dominant internet platforms continues to make headlines, it’s encouraging to see lawmakers turn to well-established values, laws and norms — like property rights or reforms to the underlying legal architecture that drives the platforms’ incentives — for solutions.
When Google’s witness tried to deflect Hawley’s pointed questions about their persistent location tracking by saying “I know it’s complicated,” Hawley shook his head, “It’s actually … it’s not complicated.”
Noting the fact that property rights must be protected and not merely granted, Senator Elizabeth Warren, D-Massachusetts, recently said: “We must help America’s content creators — from local newspapers and national magazines to comedians and musicians — keep more of the value their content generates, rather than seeing it scooped up by companies like Google and Facebook.”
It’s quite clear that the internet’s problems are facilitated by a lack of adherence to norms like respect for personal privacy and protection of property. It’s heartening that lawmakers like Kennedy, Warren, Hawley and their peers are seeking a return to those fundamental rights to address online harms.