Why Congress Gets Privacy Wrong

It’s a truism that if something on the internet is free, the product is you.

When it comes to the American public having their privacy rights trampled by the business models of Big Data companies, members of Congress get this part of the problem right. But their search for a legislative remedy quickly goes off the rails because they are unwitting prisoners of a legal framework that betrays the fundamental rights of citizens to those in Silicon Valley who have become grotesquely wealthy from selling and abusing our personal data.

Rooted in pre-digital legal concepts, American law treats the personal data of our citizens as the property of whoever collects it online. Once that legal premise is embraced, the debate immediately shifts to the question of how citizens can share in the value of their data. This logic is the premise of bipartisan legislation being championed by Senator Hawley (R-Mo.) and Senator Warner (D-Va.) that seeks to compel Big Data companies to put a “price” on the personal date they control.

Not to be outdone by Congress, California Gov. Gavin Newsom is promoting the concept of a “data dividend” to be paid to California residents for the value of their personal information that is collected. Perhaps a tax on such dividends may even be the next scheme Sacramento devises to deal with their epic deficit.

The right to privacy, though, is a fundamental human right under both American and international law. So how did we arrive at the point that the most lawmakers seek to do is fix a value on our personal data and then presumably give the public a small percentage of the value after it is sold?

Unfortunately, although our nation is self-consciously committed to the promotion of fundamental rights, we have fallen behind in the protection of privacy. This is due to our generally unexamined reliance on obsolete privacy law concepts when dealing with personal data.

In contrast, European law treats personal data as an extension of the human person — an approach that leads to greater protection for individual citizens. The argument is that if someone collects your health data, your financial data, data on your opinions and habits, data on your friends and relationships and other elements of your “digital fingerprint,” then they effectively have you — at least to such a degree that they can predict and even manipulate your views and actions with shocking accuracy. Indeed, doing precisely this has become big business in our era.

Unfortunately, none of this will change until those who make America’s laws — at the federal and state level — embrace a framework for privacy protection that embodies a serious commitment to the protection of this fundamental right. For a number of reasons, we probably will not see a wholesale shift to the European model. But we need to end the current misguided legal regime that transforms all of our most sensitive personal data into the “property” of whoever collects it rather than the person about whom it pertains.

No one can study, work or (arguably) even live in the modern world without using a number of digital tools whose oxymoronic “privacy policies” require that we surrender our privacy rights. But individuals are helpless against the power of Big Data, so a legislative paradigm shift is needed.

Advocates for Big Data can be expected to continue to use pre-digital legal concepts as a defense for an American system whose privacy protections have ironically fallen far behind those in Europe. But no one ever intended for property rights to be used against citizens to the benefit of corporations whose vast wealth and power has created the era of the Net State.

We went through a similar fundamental legal and legislative paradigm shift as a nation when we rejected the system of Southern slavery that was also rooted heavily in property law concepts. At the time, America was also catching up to other nations, such as Great Britain, that had already abolished the practice. Now would be a good time to ensure that we do not consign future generations in America to a vast digital plantation that is increasingly a legal backwater in the civilized world.

Matthew Daniels is the Chair of Law and Human Rights at the Institute of World Politics in Washington, D.C., and the author of the new book Human Liberty 2.0.

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