Who Owns You Online

By | March 19, 2012

As dispassionate as it sounds, a person’s data is their digital replica. Though there are thousands of traits that make someone unique, a binarily-coded identity is the only verifiable one, making it arguably the most lasting and meaningful. As the singularity gets nearer and nearer, technology could conceivably be responsible for the legal definition of personhood being extended, and therefore, the protection of our digital selves is of immediate concern.

Jotting down thoughts, speaking a few words, and just taking a drive are no longer ephemeral activities, they’re defining ones.

“I think the format of [social media] makes sharing feel contagious and it normalizes a level of self-involvement and transmission of details that would previously have just been considered weird,” says Ari Melber, correspondent for The Nation.

How much control do we have over these pieces of ourselves, whether we’ve given them away freely or they’ve been snatched without our knowledge?

Data
Data has always been made up of 1s and 0s but now those numbers fall behind a dollar sign. Facebook’s valuation of nearly $100 billion is built on little else but its users’ data. Likewise, Google is an advertising company that’s model relies on the input and monitoring of millions to earn the $38 billion in revenue it took in last year, 96 percent of which was from ads.

Using Google’s services entitles the company to “use, host, store, reproduce, modify, create derivative works,…communicate, publish, publicly perform, publicly display and distribute” a user’s content in perpetuity, even after the user has disengaged from those services.

Terms of use policies for social networking sites, including Facebook and Twitter, frequently have similar wording that grants the companies, and to whomever they decide to sell it, the rights to “IP content” (i.e., user photos, personal information, status updates, comments, etc.) in a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license” (i.e., that is the right to share in the use of and to sell the use of it, including for profit and without payment) agreement. It’s a policy that has led to people becoming pitchmen for things they’d rather not be associated with in Facebook ads.

“I think the line between technically, legally using people’s information and stealing their content in ways they didn’t knowingly consent to is a line that has more to do with perception than law,” Melber says.

So while it may come as a surprise to many to discover their photos are popping up in ads across their network of friends, it’s only the beginning of how their information is being used. Sponsored ads are also public, while the many other ways a digital identity is sliced, diced, packaged, and sold are not.

“They have what many would consider a very aggressive reading of their control over not only all of their users’ content but also all of their ex-users,” Melber says. “We’ve got a lot of companies here who not only don’t allow you to opt out, but once you opt in, like Hotel California, you can never leave.”

Terms of service can—and do—change frequently and without direct notification to users. To keep up to date on what they’ve signed up for, it’s up to users to constantly check the terms of service on the sites where they share information. Continued use of the site, whether or not the users have reviewed the terms, constitutes agreement to whatever makes its way into the policies.

Melber mentions that some, such as Zipcar founder Robin Chase, think the day may be coming where users are paid by sites like Facebook to share their information. Chase isn’t alone; at SXSW Interactive, Jaron Lanier, computer scientist and author of You Are Not a Gadget: A Manifesto, said, “Facebook should pay people for content that enriches Facebook,” according to BuzzFeed FWD.

Ownership
The debate over compensation for data reinforces the notion that data is property, but who has responsibility for that property when more than one person “possesses” it is a point of contention. This formerly theoretical concern has become a very real one for those who lost their data in the fallout from the explosion of Megaupload.

Alex Lakatos, a partner of Mayer Brown’s litigation and financial services regulatory and enforcement practice, highlighted some of the issues that can arise in situations like Megaupload’s. For Megaupload users who are trying to retrieve their data, they’ll first face the most basic question: Where is it?

“It’s not entirely clear who actually has the data,” Lakatos says. “What the government is saying is, ‘Well, we just went in and made copies of stuff, so we don’t actually have the data anymore.’ What Megaupload probably will be saying is, ‘Look, we told you in your contract to make your own copies of this stuff and keep it so you don’t have any claim against us under contract.’ And then you’ve got a couple of third-party hosts for Megaupload.”

Even when that’s answered, in any attempts to get that data back, users will have to contend with laws that were not written to deal with technology.

“There is precedent for using a writ of replevin—basically, a very old property claim that allows you to go to court to get back property that someone else has, but to which you have a superior right, e.g., you left your bicycle at someone’s house and they aren’t returning it—to obtain e-data.” Lakatos cautions that even that could possibly be waived by Megaupload’s terms of service.—Next: Reputation

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