Stop Using My Data
No one can own data
As a consumer, you are engaging scores of services every day and greedy corporations learn all kinds of things about you. In most of these cases, companies exploit the things they learn about you for huge profits.
Are you ok with that?
Here’s a crazy secret that we hope won’t be a secret much longer…those greedy companies don’t own your data. Feel better? Well before you start your happy dance, the scarier truth is…you don’t own it either.
How come? Well, it was never your data to begin with.
Now, before you immediately scroll to the bottom and flame comments in troll-ish torrents, consider this…
Everyone thinks they can own data. But that’s elusive to define or prove in the courts. It’s been argued that you cannot own data any more than you can own water. Ask yourself this simple question, “what would data ownership look like?” Would you own all the altered magnetization bits on the surface of hard drives where your medical records are stored across multiple data centers leased by a medical provider? Would you own the electrons buzzing through wires or light impulses coursing through fiber as data is transmitted around the world?
How would you go about gathering all that back up to lock it away until a court date to prove it was actually yours? How would you carry it into a court and allege someone stole it from you?
The maddening truth is that data is not only intangible, in most cases it’s not even intelligible. Even if you could hold it in your hand (which you can’t), you’d likely not be able to literally understand what you’re looking at.
If we stopped there, this story could be grim. So, let’s shift the focus to something useful and find a helpful handle we can all hold.
A Handle to the Intangible
There have been similar problems in the past from which we can learn… how can you own a story told, or an idea imagined, or even a song sung? Today, these cases are immediately understood to be situations of license, or rather the rights to claim something intangible as yours. An artist can’t really own the song, itself, as it’s being sung because they can’t hold a song. And before you say, “they could hold a record!” remember that few songs are on vinyl anymore, and you’re showing your age, and further…you wouldn’t want to say you owned the vinyl in the first place — it’s cheap plastic and all songs would end up having the same value as their cheap plastic. The worst part would be: when someone bought the vinyl, could it be argued that they then own the song?
That would be nuts — but it’s the squiggly slope you start slide down when you attempt to objectify a work product of the mind.
The better approach history took was to determine that the artist owned the rights to a song. That way it really doesn’t matter what medium is used for its distribution and enjoyment, the artist still owns the rights to it. Could you imagine if they had rather argued they owned the objectified song, itself? The first person that stole the vinyl and printed cheaper copies in a foreign country would immediately dilute the song’s value for the artist. Lucky for us, and the artist, since it’s the rights that are owned, a foreign pirate can still be held accountable for violating those rights and hopefully brought to justice to account for each instance of violation, all the while the overall ownership value to the rights remains intact.
Rights equivalent to ownership both maintains a concentrated value and provides a tangible handle of ownership for the intangible product.
Rights Equivalent to Ownership
As a definition for a highly optimized approach to ownership and information for commercial purposes, we will demonstrate that customers can have ownership, and by the same rules, so can companies.
1. Data is the intangible, most basic of abstracts (0s & 1s), generated when an actor engages a service.[i]
2. When a person observes data and perceives value in meaning, it then becomes information.[ii]
3. When information is generated, related rights owned by the actor are concomitantly generated.[iii]
4. Created data representing a creation of the mind, like the characters that form the body of an email written by the actor, is instantly also completely information.[iv]
5. Produced data that is not a creation of the mind, but rather is a generated byproduct of the actor’s actions, like data about an email, is data that may also yield some information when observed.
6. Newly created information can, without conflict resulting in potentially shared or lost ownership, draw upon older protected information when the new information adheres to fair use, or is otherwise sufficiently modified,”[v] such as an inspired conclusion within an email.
7. A set of tools and rules can be applied to a service bringing clarity to the ability to use produced information and the management of the pertaining rights — such as a clause in a privacy policy that spells out a secondary use of information for some additional value to the service provider.
8. Based upon applicable law, regulations, and tools and rules, viability and any resulting retention policy for information can be fleeting or long-lived.[vi]
9. Rights equivalent to ownership, such as information rights which can be owned as a claim for intangible things such as intellectual property over musical, literary or scientific creations of the mind, may better apply to information than Ownership which is the legal right to the possession of a tangible thing or claim. You can own rights, and rights can apply to information.[vii]
Based on these nine principles, the highly optimized approach to ownership in relation to information might better be stated.
Example: the derivatives generated from A.I. and Machine Learning run on original state data or derivatives therefrom are not necessarily or even generally going to be subject to the same rules for, and rights equivalent to ownership of, the original state data.
In this case, the viability of the information rights owned by a company would not be subject to the viability and potential durability of the information rights owned by their customers as different law, regulations and tools and rules would apply. As part of customer viability, inherent control would require methods for 1) deletion, 2) disassociation, or 3) otherwise sufficient modification to the point that it is not recognizable as a “substantial part” of the original. There will be many uses for such an ability to effectively wipe[viii] information in a smart way including heritage (post-probate death of the customer, etc.), and the “right to be forgotten.”
The Art of Licensing
Once you realize that you own your information rights, now what can you do with them? One approach is the license them!
Good businesses are reaching out to nonprofit cooperatives known as Authorized Agents, and if they meet touch scrutiny, they want to license the use of the information that you have already provided them.
For example, you visit a store, engage a few displays, end up purchasing some product, and the store wants to use that information combined with the same type of data from others to sell insights to the display providers. If they agree to the terms of your authorized agent, and pay you a licensing fee, you may actually like to get a piece of the action for a change!
No one would be selling the store your data…the store would be licensing the use of information they already collected.
Wouldn’t it be great if you could have some automated way to just get paid each time something like that happened?
You do! It already exists.
The Authorized Agent, the Affiliate, and AWS
If the store in the above illustration becomes an affiliate of your authorized agent — some nonprofit cooperative you belong to, the store can easily license the use of your information rights if the right technical bridges are built.
This easy bridging automation can be managed through existing popular platforms such as Amazon’s AWS and their MarketPlace functionality.
A real-world version of this happens with an authors’ imprint company called Kilterless.com. That business ends up with all sorts of data as authors and readers connect through their various services. In order to remain compliant with regulations, Kilterless became an affiliate of the Privacy Co-op. And since Kilterless became an affiliate, they used a snippet of co-op code in their privacy policy to provide opt-out services to you as a reader!
Now if you become a member of the co-op, Kilterless can license the use of the information they may already have on you, and you can opt-out at any time from their own privacy policy! You have all the power AND the potential to get paid for the use of your info.
Super convenient and transparent!
Where does that leave me?
OK, that all got a bit technical and legal, right? Here’s the plain truth we can all take away from it…
All those companies that are making boatloads of cash by exploiting the things they learn about you while you use their services don’t own the data. However, you do own the rights to that information found within the data. Even though a business may have already sold personal insights about you or suffered a breach where your information got out to other parties, that doesn’t mean they got away with it free and clear. If you were to find a group of people like you, collectively the group could demand that 1) those businesses stop exploiting your information, and 2) that they then pay you your fair share going forward.
That’s the power a class of people have in the courts when they own the rights to something.
How do I get started?
The Privacy Co-op.com is a great place to start! We not only understand all these things, we have built an easy-to-use interface and agreement to support folks just like you. You can make companies stop by becoming a Participant for free, and you can make them pay by becoming a Member for a one-time $25 membership fee.
Learn more at www.privacyco-op.com!
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The following footnotes are not intended to be exhaustive, but do begin to frame a basis upon which more argument can easily be built.
[i] In Retail Systems, Inc. v CNA Insurance Cos., 469 NW2d 735 (Minn App 1991), a customer’s computer tape mysteriously disappeared while in the insured’s custody. After finding the phrase “tangible property” to be ambiguous in the case of computer data, the court observed that the data recorded on the tape was merged with the tape itself. Thus, when the entire tape was lost along with its embedded data, there had been a loss of tangible property. However, the Retail Systems case did not actually answer the question of whether data itself, apart from the medium in which it is stored, is “tangible property.”
[ii] The Mathematical Theory of Communication — Claude Shannon, Bell Labs, 1947. According to the theory, transmission of the message involved sending information through electronic signals, the smallest measure of which was called bits (binary digits). According to Shannon and Weaver, not all bits were information, but rather information is defined as “a measure of one’s freedom of choice when one selects a message” from the bits.
[iii] Patent, trademark, and copyright law, notwithstanding trade secret law nor privacy law which may rely on established rights, constitute the bases on which the underlying intellectual property may be protected in law. Typically these types of law grant rights equivalent to ownership to the creator, unless otherwise specified.
[iv] Copyrights are generally owned by the people who create the works of expression, with some important exceptions. Such as works for hire, employment, or sold. Copyright law, Section 201(a) — “vests initially in the author or authors of the work”.
[v] Assuming that the use of the Original State Data does not violate privacy law, then non-conflicting use is a matter of quality not quantity — VMG vs Madonna found that a single horn stab copied from Funkadelic, a two second sample — had been modified to the point that it was not recognizable as a “substantial part” of the original and therefore not plagiarism or other such misappropriation.
[vi] Duration of the terms that permit various uses are clarified by law, regulations, and programs.
[vii] Ownership is the legal right to the possession of a thing; the complete dominion, title, or proprietary right in a thing or claim. Claim refers to the assertion of a fact, or set of facts, that establishes a legal right to some form of compensation or remedy which is enforceable in court. Claim can also refer generally to a belief in, assertion to or demand to some right in property, money or remedy.
[viii] For smart wipe, all information would need to be grouped into A) required for a finite amount of time to facilitate functionality, B) may be deleted immediately, C) may be disassociated, and D) may be modified/transformed. Some of the information listed in one of these groups may need to move to another group in certain cases. For example, a web history record not subject to a legal hold, may be immediately deleted in the case of either death post-probate or right to be forgotten, while a login credential may only be deleted in the case of death post-probate but would need to be kept for the case of right to be forgotten. Some data may require disassociation, like location data required for billing, and yet not required for relevant advertising in the case of right to be forgotten.
