An Argument For Positive Political Theories of Data Governance
This Essay distills some preliminary thoughts about the value of a positive political theory of data governance in law from remarks given at the 2022 Georgetown Law Technology Review Symposium. What do I mean by “positive political theory”? Typically, the interests recognized and operationalized by law in data about people are indexed via negative rights claims (i.e., what protection law affords people against being datafied). This essay will focus instead on legal interests in expressing (and perhaps even enacting) positive demands regarding social data, particularly privately held social data.
Such an approach to data interests is political in two capacities. First, this approach characterizes claims to data as claims regarding the exercise of a form of legally constituted power. Second, this approach structures the distribution of discretion regarding the exercise of that power among different entities.
This Essay argues that this approach to legal interests in social data is beneficial because it moves beyond an overly-blunt binary relationship to the exercise of that power. This achieves two benefits. It can better capture ways that datafication is wrongful. Additionally, it allows us to express affirmative claims about how to govern via data flows, not just how to prevent certain human behaviors from being datafied to begin with.
Salomé is an Academic Fellow at Columbia Law School. She is interested in how information law structures inequality and how alternative legal arrangements might address that inequality. Salomé’s current work is on the political economy of social data. Here, she is interested in the legal theories of social data: what legal status social data enjoys, what legal interests it implicates, and how the law does (and should) regulate its creation and use. Salomé’s academic work has appeared in legal venues such as the Yale Law Journal and the University of Chicago Law Review Online, as well as in technical venues such as the ACM Conference on Fairness, Accountability and Transparency. She also writes essays and articles for places like Nature, the Guardian, Logic Magazine and Phenomenal World.