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Protect personhood in the age of data

James Felton Keith and Patricia Paul

Making trade-offs of privacy for the convenience of technology is nothing new, from the U.S. postal service mail in the 18th century to the 19th century’s use of switchboards on the telegraph.

In the 21st century, people are accustomed to trading rapidly increasing amounts of private data for convenience.

From a data science standpoint, user experience is driving the process of creation by uncovering more and more individualized data, further blurring the line between producers and consumers of data and insights, and raising real questions about ownership of data.

The legal framework we choose profoundly shapes the terms-of-service under which people trade data for services. A world in which convincing copies of individual’s personality can be cloned electronically demands an equally revolutionary legal approach.

Data sufficient to create a working copy of an individual’s personality — or even the much lesser amount of personal data sufficient to control an individual’s material decisions and turn them into a money-pump or vote-pump — can no longer be automatically treated as owned by default by the companies. Instead, the default should be that data is owned by the individual in order to create fairer terms-of-service and protect individual autonomy.

When personal data reaches the point where it can precisely control or digitally copy the personality of that individual, it must be defined as part of personhood or else we will irrevocably compromise our ideal of individual autonomy.

Throughout history, we have actively redefined the line between what is considered property and what is considered personhood, so we are free to recognize personal data sufficient to control or copy an individual as part of our inalienable personhood.

Our policies rely on privacy law to regulate personal data, which is the wrong tool for today’s hyper-individualized information age because it is inadequate to deal with the implications for individual autonomy. Data science has progressed to the point where companies have more information about individuals and how to shape their choices than those individuals have about themselves, Facebook knows more about your relationships than you do, and your insurance company knows more about your health than you.

The Internet of Things (IoT) will mean that no one can opt out of this massive data harvesting, as all devices are IoT. Current privacy law was designed for a “limited-information age” that is now over. Data is now so individualized that we are in the “identity-information age” where information sufficient to define our identities is automatically harvested by companies.

In a world where information equals identity, we must focus on protecting personhood and autonomy, not just privacy.

Americans are now making trade-offs for personhood, not privacy. In the land of the free, we have to ask the question, who owns us?

James Felton Keith is the founder of the Personal Data Project. Patricia Paul is a former labor lawyer.