Ownership of Social Media Data

Should users of social media be allowed to own the personal data they produce through expressing their preferences on social media? 

It is important to define what it means for users to be viewed as property owners. Firstly, it means recognising that they have property rights or interests in the data that they produce. This can happen through existing structures like the “bundle of rights” formulation (Jeremy Waldron, ‘What is Private Property?’). Secondly, it is important to note that this bundle of rights is malleable, and the state has the ability to shift the extent of these rights by either limiting the ability to sell or exclude others from use (Radin, ‘Property and Personhood; Mosk J in Moore). 

This essay will deal with the presumption of the value of these datasets before forwarding three arguments in support of the recognition of property rights. 

Firstly, the essay presumes that data is a valuable asset. However, the caveat to this claim is that it is disproportionately valuable to companies who use them, and not to the consumers. It may benefit consumers in the sense that they may be recommended products and services which meet their demands, but the use of this data harms individuals in two ways. One, it limits their economic autonomy. This is because the use of this data in advertisements changes the amount and variety of information an individual will get, as they will only be shown products that closely align to their pre-existing preferences. This amounts to influence (as it is likely to push people to consume according to biases) and exclusion of alternatives (as people will not be exposed to other products which do not closely align to those preferences). Two, it limits their political autonomy.  Social media platforms have become increasingly relied on for news, and its lack of content of accountability is likely to lead to misinformation (John Lachester, ‘You Are the Product’). This content is spread in a targeted manner through the use of personal data in two ways; platforms recommend content from others with which you may have similar preferences, and platforms also show political advertisements which may align with those preferences. This has already taken form before, as shown empirically by the 2016 US elections and the Brexit referendum. (NYT, ‘Cambridge Analytica and Facebook’). The problem is that it creates digital echo chambers where people are coerced further in their political beliefs, which will impact their political autonomy to vote. 

Meanwhile, companies are very likely to profit massively from the use of data. They use it to produce advertisements in order to sell their products. Dallas Smythe’s ‘Communications: Blindspot of Western Marxism’ takes this further by arguing that this amounts to exploitation or “psychological manipulation”. Audiences are treated as commodities and are used to produce the product, or data, which is then used to sell other products back to those audiences.

This leads to the first argument: that the disproportionate harm consumers suffer forms a moral basis for the creation of ownership rights of data.  All of the harm inflicted upon consumers is contingent upon the rights of usage and income (Honoré, ‘Ownership’) that companies hold in de facto. By recognising that this data belongs ultimately to those who produce it, users of social media platforms will have more autonomy both with regards to the usage of that data but also the implications of that usage. 

The second claim is that personal data amounts to a form of personhood, therefore people should be allowed to own that data. This opinion can be sourced from Radin’s ‘Property and Personhood’, where she argues that some property is important where ownership of which will allow individuals to become fully developed persons in the context of their society and where those personal property rights are important in maintaining and expressing their group identity. To simplify, the personal data of an individual, their preferences and projections of themselves online, constitute their identity. Therefore, that data should be owned as it is an extension of themselves. This is true because your identity comes from what makes a person unique (Leibniz’s Law), and this uniqueness comes in the form of your preferences. As your preferences are shaped by your past experiences and relationships, all of which can uniquely happen to only one person, these preferences constitute a culmination or summary of your identity. Even if we take Geach’s contention that identity is only relative (some preferences are too general to be unique; for example, that most people love McDonald’s) this conception of identity is still important to the individual and should not be manipulated; but it can still be found in the preferences we vocalise online. Therefore, as this data is the representation of your identity, ownership of it must be instrumental in allowing you to become fully developed persons in the context of your society. Recognising these property rights would mean protecting that data from invasion, whether from governments or corporations, and also lead to further control over one’s personhood. 

The previous two arguments show how important this data is to the individual. The third argument aims to show how data ownership is likely to shift the paradigm in a more favourable way for consumers. The first way it does this is by allowing for control over the data. This means that consumers are allowed to choose who has access to their data and also to what extent this data can be used. Furthermore, it might mean that individuals are allowed monetary compensation beyond the personalised products that they get from the usage of their data. Vaclav Janecek in ‘Ownership of Personal Data in the Internet of Things’ supplements this claim by showing that individuals already have some rights of control, although they are limited, through existing technologies, such as the Personal Information Management systems, and through legal tools, such as the right to data portability (P De Hert, ‘The right to data portability in the GDPR’) and the duty to obtain informed consent before personal data can be collected and used (Article 29 Data Protection Working Party). Therefore, it is natural to extend this control by recognising property rights. 

Secondly, property rights will facilitate the protection of that data, as it means consumers will have the formal interest in excluding others from controlling personal data and the interest in having a legal remedy when someone infringes the data (Purtova, ‘Property in Personal Data’).  

        Thirdly, property rights would lead to the valuation of that data (Janecek). In the status quo, data is treated as a free resource by companies who collect data through the use of cookies (Gerlitz and Helmond, ‘The like economy’); ownership would recognise the formal value in that data, and thus leading to the treatment of that data with more respect. 

        Finally, it is important to look at a dissenting opinion from Lothar Determann’s ‘No One Owns Data’. He argues that ownership would limit creativity and technological advances as information is a premise for innovation. Furthermore, ownership will lead to it becoming a proper commodity, access to which is contingent upon paying a premium which will ultimately increase prices for consumers. He also argues that this would limit freedom of information and speech as “putting a fact into the ownership of one person or allowing an entity who generates a fact to control how it is used creates pernicious dangers against the freedom of expression”. He finally argues that this would incentivise an outright market where individuals transfer ownership of their data to companies, which could then exclude anyone from using data to which the companies have acquired property rights. 

        The reason why these arguments do not hold water is that they operate under the assumption of a strict bundle of rights construction; that is anyone who owns data has an unfettered right to capital gain, exclusion, sale and usage. However, Radin and Mosk J have argued that not all property has the same bundle of rights, and that the law is uniquely placed to adapt that bundle to circumstances; thus, accommodating for these policy concerns. 

        In conclusion, users must be viewed as property owners as the alternative is exploitation by market forces and a detriment to one’s personhood. Furthermore, ownership of this data is the only mechanism through which control, protection and valuation of this data can happen, and balance out the concerns of data usage by companies. 

- Paren