Data Privacy is a Property Rights Issue
Over the past decade, the erosion of trust in our institutions and each other has metastasized from a localized problem—primarily in our financial institutions and certain government agencies—into a societal crisis. And it is harming private citizens as well as the business sector.
Apple CEO Tim Cook has made this point many times, most recently at the International Conference on Data Protection and Privacy in Brussels Oct. 24. Cook’s rhetoric lambasting the “Data Industrial Complex” and the “weaponization of data” has been criticized as self-serving and histrionic, given that Apple, fundamentally a hardware company, is attempting to separate itself from “data aggregators” such as Google, Facebook and Amazon in the eye of the public and regulators.
I disagree with these critics and applaud Cook for taking a stand. The problem with Cook’s highly charged rhetoric is not hypocrisy; rather, it obscures two fundamental and ultimately optimistic points that should resonate with every American and citizen around the world:
- First, “the right to privacy” is not an abstract concept embraced by faceless European bureaucrats and ivory tower academics. To the contrary: Privacy is fundamentally about property rights and, therefore, privacy is at the heart of the U.S. Constitution and western democracy more generally.
- Second, new technologies are coming to market that are enabling people and institutions to take action to protect their data wherever it’s shared, without ever having to trust a third party. There is a path forward to regain our liberty and property rights in the digital world.
It bears repeating: Our data is our property. It represents us as individuals and has immense value. Unfortunately, it has been hijacked for private profit and too often used for nefarious purposes without our explicit consent. As soon as we use digital products, companies treat our data as if it is theirs. We are treated as serfs on our digital land, working so that others may profit from our property.
To make this point, Cook quoted the philosopher Henry David Thoreau: “’We do not ride on the railroad,’ he said. ‘It rides upon us.’” While Thoreau’s words are poetic, Cook should have made the point more concrete: The Right to Privacy is grounded in fundamental legal principle.
Winston Churchill referred to the Magna Carta as “the most famous milestone of our rights and freedom.” King John’s signature on the Magna Carta in 1215 set in motion an 800-year human endeavor to foster just societies where the rights of all individuals were equivalent under the rule of law. Among the guarantees that have endured as central tenets to maintaining a democratic society are individual property rights. English philosopher John Locke’s Two Treatises of Government (1689) also establish property rights as a fundamental human right and the fulcrum of liberty. This interpretation was later indoctrinated into the U.S. Constitution (1791).
Today, our property (our data), privacy rights and liberty as global citizens are under attack from multiple sources. The primary source of that threat is not a foreign adversary wishing us harm, nor the geopolitical winds of the day, such as the Trump Administration, China or Russia. It is not even the few large technology companies that have collected the greatest trove of personal information the world has ever known to generate massive profits.
Extraordinarily powerful technology corporations have effectively lulled Americans—and much of the world—into trusting them to do the right thing with their most sensitive data. The seductive power of smartphones, Facebook feeds and Google’s search bar is very real. Meanwhile, these companies are financially incentivized to monetize all of your data, which they collect in every interaction you have with their technology. Think about it: Today, everything about you—all of your family photos, texts, search histories, interests, relationships, even at times your DNA sequencing—are known by third parties.
Data aggregation has resulted in an unprecedented centralization of power. Without clearly established property rights, we are caught in a vicious cycle. Our data is being used to further manipulate us to spend more time interacting with the products that feed the aggregators, providing more profit to fuel their growth, power and influence over society. We are no longer the customer. We are the product.
Cook had a welcoming audience in Europe for his message, and that should be no surprise. Europe has repeatedly encountered and been forced to suppress, at grave human cost, the most brutal of authoritarian regimes. Europeans know full well what can occur if property rights and individual privacy aren’t guarded zealously. As such, Europeans have been quick to promote the fact that we are our data and, therefore, it must be protected. They have taken critical first steps, introducing strict regulatory guidelines (GDPR) governing EU citizen data that impacts any company doing business in Europe.
Our government institutions have always been charged with creating checks and balances to guard and preserve public trust. I am hopeful that the United States and other nations follow suit—introducing smart but stringent regulations—grounded in the foundational principle of property rights. The California Consumer Privacy Act (CCPA), passed this summer, is a step in the right direction. Unfortunately, we know that Silicon Valley has worked hard behind the scenes to weaken these protections so the companies only have to do the bare minimum to preserve their massively profitable business models. We must be vigilant in ensuring that CCPA represents the “floor,” not the “ceiling,” of effective privacy regulation.
The goal isn’t to limit the technology industry’s ability to innovate and generate economic growth; quite the opposite. By returning control of data to its owners, trust is regained, enabling MORE data and even more sensitive and valuable information, to be shared. Economic value will be unlocked by the creation of a true data “sharing economy.” Drugs will be discovered more quickly, as research is freely and securely shared between pharmaceutical companies; banks will dramatically reduce fraud by sharing highly sensitive threat intelligence; even the most sensitive, classified data will be moved to the public cloud. The benefits are innumerable.
To unlock this potential, we must be certain that companies will do the right thing with our data—through smart regulation and advanced technology. Governments, corporations and the public must take steps collectively to restore public trust by safeguarding society against direct threats to our individual and collective liberty. Our daily lives leave a massive footprint of personal information out in the wild, controlled by others whose interests may not align with ours. We must all work together to address this problem. We are at a crucial moment in our journey as human beings. As more of our property is digitized, we must safeguard the rights that have allowed western democracy to flourish and ensure all who come after have the right to life, liberty and the pursuit of privacy.
