Own Data? Ethical Reflections on Data Ownership' by Patrik Hummel, Matthias Braun and Peter Dabrock in (2020)
Philosophy and Technology comments
In discourses on digitization and the data economy, it is often claimed that data subjects shall be owners of their data. In this paper, we provide a problem diagnosis for such calls for data ownership: a large variety of demands are discussed under this heading. It thus becomes challenging to specify what—if anything—unites them. We identify four conceptual dimensions of calls for data ownership and argue that these help to systematize and to compare different positions. In view of this pluralism of data ownership claims, we introduce, spell out and defend a constructive interpretative proposal: claims for data ownership are charitably understood as attempts to call for the redistribution of material resources and the socio-cultural recognition of data subjects. We argue that as one consequence of this reading, it misses the point to reject claims for data ownership on the grounds that property in data does not exist. Instead, data ownership brings to attention a claim to renegotiate such aspects of the status quo.
The authors argue
Data seem to be produced on unprecedented scales. Sensors, wearables, and devices continuously translate physical movements and states of affairs into data points. When browsing the internet or using social media, analytic tools process each and every click. Shopping interests and behaviours feed into tailor-made adverts and products. Networked cars and autonomous driving rest on large-scale gathering and processing of vehicle and traffic data. Precision medicine aims to search for patterns and correlations in huge sets of patient data, and promises to personalize prevention, diagnostics, and treatments to the specific characteristics and circumstances of individual patients. Industry 4.0 datafies and automates steps in manufacturing and production. The Internet of Things extends digitization, datafication, and networked objects even further. The recurring observation is that data processing will become increasingly pervasive and powerful. Already now, we witness transformations in how we perceive, frame, think, value, communicate, negotiate, work, coordinate, consume, keep information confidential, and make it transparent.
One—if not the—pressing question in the context of digitization is whether foundational rights of individual subjects are respected, and what it takes to safeguard them against interferences. One frequently discussed suggestion is that these questions arise against the backdrop of contested relations of ownership, i.e. the relation between an owner and her property. There is a set of expectations associated with data ownership. “It gives hope to those wishing to unlock the potential of the data economy and to those trying to re-empower individuals that have lost control over their data” (Thouvenin et al. 2017, 113). In this spirit, calls for data ownership demand that data can be property. Yet, commentators caution that “[s]implified versions of ownership […] may create compelling soundbites but provide little direction in practice” (The British Academy and The Royal Society 2017, 32). While data have tangible aspects, such as their relation to technical-material infrastructures, they also seem to differ from ordinary resources and tangible property (Prainsack 2019b, 5). In a digitized and datafied lifeworld, claims to data are indispensable towards claiming fundamental rights and freedoms. These preliminary observations prompt us to clarify what data ownership exactly means, how it is justified, what it tries to achieve, and whether it succeeds in promoting its aims.
The present paper explores the content of claims for data ownership. It has two goals: first, it provides an in-depth analysis of different notions of data ownership and uncovers inherent conceptual tensions and puzzles. As we will argue, a variety of considerations are put forward under the heading of data ownership. The notion is ambiguous and even paradoxical: it used to articulate and taken to support claims that stand in tension and are mutually incompatible.
Second, we argue that all of these dimensions of data ownership matter for informational self-determination, understood as the ability of data subjects to shape how datafication and data-driven analytics affect their lives, to safeguard a personal sphere from others, and to weave informational ties with their environment. Specifically, and drawing on a debate between Axel Honneth and Nancy Fraser, we demonstrate how the meanings of data ownership raise both issues of material ownership (pertaining to the sphere of distribution) and issues of socio-cultural ownership (pertaining to the sphere of recognition). Our proposal is that important entanglements between both spheres get overlooked if we merely focus on one of them. For informational self-determination, both are relevant. Thus, we need to take seriously the full range of dimensions of data ownership in order to understand how data subjects exercise informational self-determination, and how such exercises can be facilitated and promoted. We discuss these challenges under the heading of data sovereignty (German Ethics Council 2017, 2018; Hummel et al. 2018; Hummel et al. 2019, 26–27).
In order to pursue these goals, we begin by briefly considering data ownership from a legal perspective (2.). As we will show, there is a debate about the compatibility between data ownership and current legal frameworks. Moreover, a number of rationales that typically discourage the institutionalization of data ownership are beginning to disintegrate in contemporary big data environments, which we take to suggest that the case for data ownership is worth debating. We then go on to provide interpretative contributions on what it would mean to establish or to maintain data ownership (3.). As it turns out, the substantive demands and goals vary significantly across discussants. We distinguish four dimensions of data ownership. Each of them is debated by reference to a pair of conceptual poles: the institutionalization of property versus cognate notions of quasi-property (3.1), the marketability versus the inalienability of data (3.2), the protection of data subjects versus their participation and inclusion into societal endeavours (3.3), and individual versus collective claims and interests in data and their processing (3.4). We propose that this characterization explains why different proposals on data ownership articulate diverging or even mutually incompatible demands, and helps us to get a grip on what is at stake when the notion is invoked. Drawing on Honneth and Fraser (4.), we go on to argue that all of these dimensions are vital for informational self-determination. Statements on data ownership touch upon and go back and forth between two different spheres: the redistribution of material resources and the socio-cultural recognition of data subjects. In view of our findings, the notion of data ownership can be understood as an expressive resource for articulating and negotiating claims concerning both spheres.
In the following, we use the terms ‘ownership’ and ‘property rights’ as follows: “Property rights […] are the rights of ownership. In every case, to have a property right in a thing is to have a bundle of rights that defines a form of ownership” (Becker 1980, 189–190). ‘Property’ refers to the thing(s) to which property rights apply.
