Who should own your digital data?

Who should own your digital data?
© The Hill photo illustration

Wikipedia co-founder Larry Sanger recently called for a social media boycott, to compel social media platforms to give users ownership of their data. Policymakers are also considering regulating Google, Facebook and other social media platforms in order to protect individual user data. Meanwhile, disinformation and hate speech continue to spread on social media, raising the possibility of a different sort of regulation.

These actions raise thorny questions, including the question: Who owns our data? Information such as our online media consumption habits, members of our social networks and our political leanings and affiliations? Many argue that these data should be treated as our own individual private property.

This is the wrong way to think about user data. Instead, we should view user data as a public resource, akin to the broadcast spectrum. The spectrum broadcasters use is “owned by the people.” It is governed so as to assure that the select few who have the privilege to access the spectrum serve the public interest.

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User data, in its aggregate form, can — and should — be treated similarly, as a public resource. Just as broadcasters built their businesses on the collectively owned spectrum, social media platforms built their businesses on our data, data that are best thought of as being collectively owned.

This approach makes sense for several reasons. First, the real value in user data only emerges through large aggregations, which allow predictive analytics and behavioral targeting. Individually, a person’s data gleaned from a social media platform may be worth about $5 a month. Collectively, such data are incredibly valuable.

Second, practical challenges — and potential downsides — come with granting individuals full-fledged property rights in their user data. An individual property rights approach ignores the distinctive characteristics of user data as a resource, such as the ease with which data can be duplicated and shared. It could make it more difficult to unlock wide-ranging benefits offered by large aggregations of user data. A more collectivist approach could better protect the future value and business innovations contained within large groups of user data.

Most importantly, disinformation, hate speech and violence —such as the livestream of the Christchurch massacre on Facebook and other platforms— continue to spread on social media. U.S. policymakers concerned about these behaviors have been hesitant to take action, because social media platforms deal in news, information and opinion — essentially speech in all its forms. The prospect of regulation thus raises First Amendment issues. Treating aggregate user data as a public resource provides a robust rationale for regulatory interventions that is consistent with how other electronic media are governed.

To regulate media, U.S. courts generally require a compelling rationale. For instance, regulation of broadcasting has been justified based on the distinct characteristics of the broadcast medium — spectrum is scarce, broadcasting is uniquely pervasive and, perhaps most important, spectrum is a public resource. Broadcast companies that built their business on this public resource must abide by public interest obligations, such as ownership limits, local programming requirements and restrictions on indecent programming.

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To date, policymakers have not viewed social media platforms as possessing any of the characteristics that justify government regulation of broadcast media. This has allowed the platforms to operate largely outside the U.S. media regulatory framework. As we learn more about the harms social platforms and their users can cause, this disconnect is becoming more troubling.

This disconnect does not need to exist. Treating aggregate user data as a public resource would provide a strong justification for policymakers who want to address growing concerns about violence, hate speech and disinformation on social media. It could bring social media under the regulatory umbrella that is well established for other electronic media sectors.

If we treat our social media user data as a public resource, then platforms that gather and monetize these data should abide by public interest obligation — seven if some of these obligations infringe upon their First Amendment rights. These obligations might include restrictions on how user data are gathered and share and explicit obligations to police for hate speech, violence and disinformation.

Our data are a valuable public resource. It’s time that policymakers treated them that way. Doing so would give policymakers a way to take action to ensure social media platforms better serve the public interest.

Philip Napoli is the James R. Shepley Professor of Public Policy at the Sanford School of Public Policy, Duke University, and author of "Social Media and the Public Interest: Media Regulation in the Disinformation Age."