A Relational Theory of Data Governance.

AuthorViljoen, Salome

FEATURE CONTENTS INTRODUCTION 577 I. DATA GOVERNANCE: THE STAKES AND THE STATUS QUO 586 A. Data as an Essential Feature of Informational Capitalism 586 B. Privacy Law's Individualism 592 C. Critiques of Privacy Law and Their Motivating Accounts 597 1. Traditional Accounts: Privacy as Control and Access 598 2. Alternative Accounts: The Social Value of Privacy 600 II. DATA RELATIONS AND THEIR SOCIAL EFFECTS 603 A. Data Governance's Sociality Problem 603 B. Mapping Data Social Relations Along Vertical and Horizontal Axes 607 C. The Importance of Horizontal Data Relations in the Digital Economy 609 D. The Absence of Horizontal Data Relations in Data-Governance Law 613 III. DIM REFORMS AND THEIR CONCEPTUAL LIMITS 617 A. Propertarian Data-Governance Reform 617 B. Dignitarian Data Governance 623 C. Conceptual Limitations of DIM Reforms 628 1. Absence of Horizontal Relations 628 2. Missing or Misdiagnosed Theories of Harm 630 3. Unjust Data Production as Unequal Data Relations 630 4. DIM Reforms and Socially Beneficial Data Production 633 IV. DATA AS A DEMOCRATIC MEDIUM 634 A. The Legitimacy Problem 634 B. Horizontal Relations and Institutional Design 636 C. Democratic Data Governance 638 1. Democracy as a Normative (Egalitarian) Standard 638 2. Democratic Evaluation of Waterorg vs. Watercorp 640 D. Benefits of DDM 641 1. Social Informational Harm 641 2. Socially Beneficial Data Production 644 a. Expanding on Existing Practices 644 b. The Possibility of Democratic Data 649 3. Democratic Regimes and Individual Data-Subject Rights 650 CONCLUSION: REORIENTING THE TASK OF DATA GOVERNANCE 653 INTRODUCTION

In recent years, the technology industry has been the focus of increased public distrust, civil and worker activism, and regulatory scrutiny.' Concerns over datafication--the transformation of information about people into a commodity--play a central role in this widespread front of curdled goodwill, popularly referred to as the "techlash." (2)

As technology firms mediate more of our daily lives and grow more economically dominant, the centrality they place on data collection raises the stakes of data-governance law--the legal regime that governs how data about people is collected, processed, and used. As data becomes an essential component of informational capital, the law regulating data production becomes central to debates regarding how--and why--to regulate informational capitalism. There is broad consensus that current data-governance law has failed to protect technology users from the harms of data extraction, in part because it cannot account for this large and growing gap between data's de jure status as the subject of consumer rights and its de facto status as quasi capital. (3)

Data-governance reform is the subject of much debate and lively theorizing, with many proposals emerging to address the status quo's inadequacy. (4) This Feature evaluates the legal conceptualizations behind these proposals--in other words, how proposed reforms conceive of what makes datafication worth regulating and whose interests in information ought to gain legal recognition. How datafication is conceptualized shapes and constrains how the law responds to datafication's effects. If data-governance law is inattentive to how data production creates social benefits and harms, it will be poorly equipped to mitigate those harms and foster data production's benefits.

This Feature's core argument is that the data-collection practices of the most powerful technology companies are aimed primarily at deriving (and producing) population-level insights regarding how data subjects relate to others, not individual insights specific to the data subject. These insights can then be applied to all individuals (not just the data subject) who share these population features.

This population-level economic motivation matters conceptually for the legal regimes that regulate the activity of data collection and use; it requires revisiting long-held notions of why individuals have a legal interest in information about them and where such interests obtain.

The status quo of data-governance law, as well as prominent proposals for its reform, approach these population-level relational effects as incidental or a byproduct of eroded individual data rights, to the extent that they recognize these effects at all. As a result, both the status quo and reform proposals suffer from a common conceptual flaw: they attempt to reduce legal interests in information to individualist claims subject to individualist remedies, which are structurally incapable of representing the interests and effects of data production's population-level aims. This in turn allows significant forms of social informational harm to go unrepresented and unaddressed in how the law governs data collection, processing, and use.

Properly representing the population-level interests that result from data production in the digital economy will require far more collective modes of ordering this productive activity. (5) The relevant task of data governance is not to reassert individual control over the terms of one's own datafkation (even if this were possible) or to maximize personal gain, as leading legal approaches to data governance seek to do. Instead, the task is to develop the institutional responses necessary to represent (and adjudicate among) the relevant population-level interests at stake in data production. In other words, responding adequately to the economic imperatives and social effects of data production will require moving past proposals for individualist data-subject rights and toward theorizing the collective institutional forms required for responsible data governance.

This Feature builds on prior digital-privacy and data-governance scholarship that points out the importance of social causes and social effects of privacy erosion. (6) It takes up these insights to offer an account of why the social effects of privacy erosion should be considered of greater relevance--indeed, central relevance--for data-governance law. By placing data relations and their populationlevel effects at the center of discussions regarding why data about people is (and ought to be) legally regulated, this Feature offers two contributions to the literature on data-governance law.

First, it aligns the legal debates regarding how to govern data production with the economic transformation of data into a key input of the information economy. This in turn illuminates the growing role (and heightened stakes) of data-governance law as a primary legal regime regulating informational capitalism.

The descriptive contribution of this Feature details how data production in the digital economy is fundamentally relational: a basic purpose of data production as a commercial enterprise is to relate people to one another based on relevant shared population features. This produces both considerable social value and many of the pressing forms of social risk that plague the digital economy. As this Feature explores further below, data's relationality results in widespread population-level interests in data collection and use that are irreducible to individual legal interests within a given data exchange. Contending with the economic realities of data production thus expands the task of data-governance law: from disciplining against forms of interpersonal violation to also structuring the rules of economic production (and social reproduction) in the information economy.

Second, this Feature departs from prior work to offer an alternative normative account for what makes datafication wrongful. Privacy and data-governance law have traditionally governed forms of private interpersonal exchange in order to secure the benefits of data-subject dignity or autonomy. Yet as data collection and use become key productive activities (i.e., economic activities that define the contemporary economy as an information economy), new kinds of informationbased harm arise. There is growing evidence of the role that digital technology plays in facilitating social and economic inequality. (7) Digital-surveillance technologies used to enhance user experience for the rich simultaneously provide methods of discipline and punishment for the poor. Algorithmic systems may reproduce or amplify sex and race discrimination. (8) Even seemingly innocuous data collection may be used in service of domination and oppression. (4) The pursuit of user attention and uninterrupted access to data flows amplifies forms of identitarian polarization, aggression, and even violence. (10) Such evidence suggests that social processes of datafication not only produce violations of personal dignity or autonomy, but also enact or amplify social inequality.

Prior accounts rightly identify the deep entanglement between the challenges of protecting autonomy in the digital economy and the realities of how data production operates as a social process: without securing better social conditions for data production for everyone, the personal benefits of robust privacy protection cannot be realized.'' On this view, the supraindividual nature of digital-privacy erosion matters because it raises additional complications for securing the benefits of robust digital-privacy protection for individuals.

This Feature departs from such accounts in that it places the inegalitarian effects of data extraction on equal footing with its autonomy-eroding effects. Privacy erosion's social effects do implicate the personal (and social) value of individual autonomy. But the inequality that results from data production should be considered relevant to the task of data governance for its own sake, and not only for the effects inequality has on data subjects' individual capacities for selfformation and self-enactment. This Feature thus argues that, alongside traditional concerns over individual autonomy, the social inequalities that result from data production are also forms of informational harm.


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