Rethinking Property in the Digital Era

'Data' has emerged as the 21st century ‘land’, the new form of power.

In the seventeenth century, political philosopher James Harrington noted that the determining element of power in preindustrial England was the ownership of land. James Madison, arguably the father of the U.S. Constitution and an admirer of Harrington, later summed up his views in an aphorism—“power follows property.”

‘Data’ has emerged as the twenty-first century ‘land’, the new form of power. Big data, and in particular, personal big data—the zeros and ones, that, when combined, can reveal unique information about individuals—has already begun to demonstrate its transformative potential. As data begins to reveal more about individuals, its value and impact on those individuals will increase. Conceptions of property must expand from the physical to the virtual to meet twenty-first century realities. Data should be viewed as a form of property.

The Ramifications of Personal Big Data

Global digital data is doubling yearly, and individual consumers create the majority of that data, producing, in essence, digital footprints. These individual consumer digital footprints—downloads, e-mails, ‘likes’, cell-phone location readings, clicks, and purchases—are just the beginning. People are becoming increasingly socialized into sharing more personal information. The Quantified Self movement aims to measure all aspects of our lives with technology, and the new wave of wristbands, like Sony’s SmartBand, are increasingly helping to facilitate that. On their own, personalized bits of data are not particularly useful, and only appear to provide relatively esoteric indicators of a particular individual. Big data, however, by fusing flows of information with insights derived from behavioral science, now allows advertisers, search engines, and social media platforms to try and predict and model human behavior.

While our personalized big data can help facilitate healthier living, smarter cities, and increasing web simplification through personalization, there is also a darker underbelly to the accumulation of this information. In a recently released report by the World Privacy Forum, Pam Dixon and Robert Gellman note that data brokers, analytical firms, and retailers, are using personal data to create hundreds of inaccessible consumer scores, ranking individuals on the basis of their perceived health risk, likelihood they will keep their job, and their supposed propensity to commit fraud. Perhaps more importantly, last week the Obama administration released the findings of their ‘Big data and Privacy working group,’ noting that big data analytics can “lead to discriminatory outcomes and circumvent longstanding civil rights protections in housing, employment, credit, and the consumer marketplace.” These secret consumer scores and profiles can cast an indelible stain on individuals, and have the potential to become sources of classification, profiling, and discrimination.

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