May 29, 2012

In recounting how American and European officials have tried to bring the Street View project to account, David Streitfeld and Kevin O'Brien got this confession from "Michael Copps, who last year ended a 10-year term as a commissioner of the Federal Communications Commission" (*). "The industry has gotten more powerful, the technology has gotten more pervasive and it's getting to the point where we can't do too much about it".

"Regulators were overwhelmed". Their task is daunting indeed, I feel for them. But this is no reason to fall victim to pessimism and defeatism, the ultimate weapons on which Sauron and sundry other dark lords rely to secure their evil power.

It does not help that technology has outmoded current law while law makers finance their campaigns by selling themselves to moneyed interests. For good rules require good laws. But, at the dawn of the Information Age, we must accept new structures take time to come into being. These fillips have claimed our right to own our personal information for six years now. I persist and insist it is a condition for economic growth.

Law however is based on words. How could laws be good if we do not agree on what the very words mean? And is it surprising if the Information Age demands we revisit the definition of property? Can it be otherwise when the nature of what confers economic preeminence shifts so thoroughly?

The first characteristic we expect from what belongs to us is to be valuable. This value may not be measured in monetary terms, it may vary in the eye of the beholder, but at least someone must value property for it to exist as such although this value does not have to be positive. To assign a negative value to what we have is simply to recognize this particular property as a liability for the disposal of which we need to pay.

Which leads us to the second characteristic. Property is transferable. This, we must understand, is a most plastic concept. A transfer may be nothing less than a destruction, as when someone takes another's life or recycle waste generated by someone else. At the other end of the spectrum, a transfer may be nothing more than a duplication, as when someone takes another's identity or receives some private information to share.

These two characteristics cannot be separated. For the transferability of property is nothing but a transfer of value, more precisely a modification in the values respectively held by the owner and another party through an action of at least one of the two parties involving that property.

Many will object to such a high level of abstraction. For them property is simply what the owner has which can be carried away by another, such as "your neighbor's wife, [or] his male or female slave, [or] his ox or ass" (1). Today's definition of larceny still rests on this narrow view (2).

Such an approach fails to reflect even biblical times for the Decalogue also mentions "your neighbor's house". If one can carry away a nomad's tent, by the time the Pentateuch was committed to paper, the Hebrews were firmly in the Agricultural Age and the Ark of Covenant had disappeared into the Temple of Jerusalem. In the transfer of a house, what move are the owners, not the building, or nothing at all if the former owner stays as tenant.

Other critics will claim that even if property cannot always be movable, it must be tangible. Again this blithely ignores History. When Faust sold his soul to the devil, his disposal of property was as immaterial as it was real in the eye of the beholder. Those who would rather forget medieval society will find the Roman Republic already knew about influence trading by law makers, the basis of today's regimes we call pronaocracy. Transferred, property may remain invisible while the underlying value variations are for all to see. A Congressman gets elected, an unfavorable law is blocked.

What critics have right is that abstraction is made even more necessary by the Information Age. In the Industrial Age, tangible, movable media carried out any lasting, large scale duplication of information. No longer, with present technology. How therefore could we effectively account for information sharing, when the owner disposes of nothing else but some abstract value unless we precisely focus on the transfer of values?

Note that for Yochai Benkler the absence of duplication cost should preclude any attempt to introduce monetary consideration. I agree that value is not necessarily reducible to a price. But neither should we shrink from including a monetary component when accounting for property values.

Abstraction helps us to grasp what is fundamental to the concept of property. It does not make all difficulties vanish. It is indeed much easier to deal with a bag of corn than a piece of land, an attaché case full of cash than the benignity of Murdoch's press, a vinyl record than a digital file.

But before we grapple with the downside of abstraction, we should ask if the effort is justified. These fillips are not some amateurish attempt to write about society, they are in defense of eprivacy, a subject in which I claim a degree of professional expertise. By our definition, is eprivacy property?

Isn't Ross Douthat questioning whether our personal data is of any value when he writes of "Facebook's disaster of an initial public offering" (**)? Isn't he echoing Yochai Benkler when he adds "the more purely digital a company's product, the fewer jobs it tends to create and the fewer dollars it can earn per user"?

Actually Ross Douthat is right to point out the low productivity of the serfs of Facebook, which "hasn't figured out how to effectively monetize its million upon millions of users". Yet with more than $4bn in revenues last year, Facebook is worth $90bn today, give or take 10%. If user personal data had no value at all, would investors be so confident? If doubts exist, they are quantitative, not qualitative in nature.

There can be no doubt at all about transferability. Facebook, Google and other modern Vandals have perfected the means of collecting our personal information. The irony is total for once, whether by stealth or coercion our eprivacy has been violated by a Big Data company, the latter uses our very right to privacy to deny transferring to others what they had converted into their own property.

That was Google's answer to "Mr Caspar, the data protection commissioner for Hamburg". That is why "three scientists from Google and the University of Cambridge declined to release data they had compiled for a paper on the popularity of YouTube videos in different countries", as documented by John Markoff (***). Making results unverifiable, competition is bad for science, but cooperation appears to be bad for business.

Valuable, transferable, our eprivacy undoubtedly constitutes proper property. Next week we will look further on the changing nature of ownership.

Philippe Coueignoux

• (*) ..... Protecting Its Own Privacy, by David Streitfeld and Kevin O'Brien (New York Times) - May 23, 2012
• (**) ... The Facebook Illusion, by Ross Douthat (New York Times) - May 27, 2012
• (***) . Troves of Personal Data, Forbidden to Researchers, by John Markoff (New York Times) - May 22, 2012
• (1) for more information, see the Ten Commandments in the wikipedia
• (2) for details, see the introduction to my 2006 lecture series on "Liabilities and Vulnerabilities in the Information Age".