From Data Co-opting To Data Co-oping: Using New Corporate Structures, Data Corporate-hood, And Data Personhood To Prioritize Data Privacy

Authors

Jonathan Askin

Abstract

The stakes of information ownership and control have risen dramatically since the Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization, after which tens of millions of people in the United States recognized that companies harvest massive swathes of data incidental to our activities and that seemingly innocuous information, such as rideshare or location data, credit card payments, or even monthly cyclical health trackers (i.e., menstruation or birth control) could potentially expose them to civil or criminal liability when linked to a chain of causation in jurisdictions penalizing voluntary abortion.2 Data scientists recognize the scale, scope, and massive power of corporate and governmental data and meta data access. Legal scholars recognize and debate the Fourth Amendment and other Constitutional implications of data handling by corporate and government actors. Out of view of most legal and data scholars, however, are corporate and other legal frameworks capable of empowering natural persons to exercise greater control over their personal data and metadata through modification of existing, and creation of new, corporate structures and redefining the nature of data.

In response, this Article proposes a US-focused legal framework approach to empower natural persons to take greater control over the corporate and governmental exploitation of their personal data and metadata primarily through the use of existing, but underutilized, legal structures such as data trusts or data co-ops. The Article explores notions of information ownership, information control, and information distribution since the harnessing of electronic transmission systems through cycles of technological change with a focus on individuals’ privacy from corporate and government surveillance. Increasing reliance on technology, both to power and to participate in the contemporary economy and social systems, has required increasingly more interaction with ubiquitous, constantly-connected systems. Such constant interaction and connectivity has provided both private industry and government the opportunity to collect information, both in service of our wants and desires but also to mine, digest, analyze, and exploit how we interact with those systems in service of corporate or government objectives and against the interests of consumers and users. Companies that offer consumers goods and services harvest, not only our communications and correspondence, but also data incidental to our activities, such as information about our physical locations, devices, and networks. The more information about us that is held by others, the more concerning the patchwork of laws, regulations, and common law doctrines that allow for government (as well as corporate and even tech-savvy individuals with selfish, mercenary, or even nefarious, motives) to gain access to information created by and about us, particularly in terms of data held by third parties (i.e., communications network operators and online Internet platforms). However, well-tested legal structures such as trusts or cooperatives, or even modified versions of traditional corporate structures such as C-Corps, LLCs, non-profits, and variations of social enterprises, may empower individuals and community groups to reclaim control over how the data they generate may be collected, stored, analyzed, synthesized, shared, and used. This article proposes that we could establish new-fangled corporate structures, like the Data Co-op, the D-Corp, or the D-LLC, structures that might help to advance data protection in the digital age. Various corporate and quasi-corporate forms, built on concepts of trusts, fiduciaries, and cooperatives, could enable a more collaborative and more accountable approach to data control than traditional corporate forms provide and could better serve to protect individual privacy from corporate and government surveillance and misuse.

Finally, there are profound and evolving concepts surrounding the nature of data, virtualism, and personhood that might inform a new understanding of the nature of data in the digital age and the rights that would inure to data and to virtual and digital persons. To date, legal scholarship has barely scratched the surface of end-user data empowerment through concepts of data corporate-hood and data personhood as means to protect data privacy.

Recommended Citation

Jonathan Askin, From Data Co-opting To Data Co-oping: Using New Corporate Structures, Data Corporate-hood, And Data Personhood To Prioritize Data Privacy, 20 Hastings Bus. L.J. 177 (2024).
Available at: https://repository.uclawsf.edu/hastings_business_law_journal/vol20/iss2/3