Josh Dunigan |||

A Kantian Conception of Data Rights

What we own, what we have a right to say is ours, is an age old question. Even with easy cases, understanding property rights, property acquisition, taxation, and the like have been debate for centuries. Property has been at the center of many political philosophies. Property has been the bane or boon of existence for people throughout milennia. One of the most famous quotes of all time by Rosseau puts it beautifully

The first person who, having enclosed a plot of land, took it into his head to say this is mine and found people simple enough to believe him was the true founder of civil society. What crimes, wars, murders, what miseries and horrors would the human race have been spared, had some one pulled up the stakes or filled in the ditch and cried out to his fellow men:”Do not listen to this imposter. You are lost if you forget that the fruits of the earth belong to all and the earth to no one!”

To make things more complicated, we have edge cases like things such as hair or saliva, do we own that, is that our body? Does bodily autonomy mean we can sell our kidneys? Should prostitution be legal? There are other things we can own as well, besides property and our body or person. We can own someone else’s deed, in that, I can sign a contract with someone saying they will perform some deed in the future for me, I can own their means for some specific task, be it singular or an entire job role such as an engineer. Furthermore, there are other things that we can claim as ours, mine, or yours. We can say that someone is my husband”, my spouse”, my father”, or my son”.

Just as people might have been making progress on the nature of things we can claim as mine”, a new foe appeared, computers. With computers, we are able to digitize books, keep personal files, have private conversations, and many other things. In this age of data, companies thrive off of having access to data, as a means to sell more and more targeted ads, make products more fine tuned to the desires of customers, and even use data to make their machine learning models better.

The rights surrounding data are sort of the wild wild west. People such as Lawrence Lessig and Aaron Swartz, organizations such as the EFF, have been fighting the good fight for awhile. With legislators incompetency, political motivations, and opportunities to make money, the use of data has skewed beneficially towards those already in power, the ones with the means to decide the law at the moment. Should there be backdoors for the executive branch of governments in hardware and software to catch criminals? Do we have a right to some of the billions in profits that are made off of our data? What should the price of books, papers, movies, and music now be when it is just a mere collection of bytes that can be replicated infinitely, not something that some quantifiable amount of labor power went into. Even more nefarious are the ways in which data and technology are being used to perpetuate existing inequalities and as tools of oppression. There are countless examples of things like recommendations algorithms, facial recognition models, chat bots, etc., being made that are racist or sexist in some way.

The goal of this post will be to provide some philosophical tools for thinking about what sort of rights should be applied to this lawless land of the internet. To do, I will analyze the concept of data from the lens of Kant’s Doctrine of Right, his main writings that develop his legal and political philosophy. I will start with a brief description of the Ripstein interpretation of Kant’s philosophy. This will start at the foundation of Kant’s legal-political philosophy and what sort of rights we have as rational human beings. These include an account of our right to our person and private right, which Kant argues are property, contract, and status right. For each category of right, I will put forth some possible ways to think about how the world of data fits in each concept.

The Universal Principle of Right

At the foundation of Kant’s philosophy is the UPR, the Universal Principle of Right, which is

Any action is right if it can coexist with everyone’s freedom in accordance with a universal law, or if one its maxim the freedom of choice can coexist with everyone’s freedom in accordance with universal law.

Now, the relation right has to virtue is complex. In short, we can think of virtue in Kant’s theory as concerning our ability to do the right thing for the right reasons, the only incentive that should be taken into account in our maxim, our subjective rule of action, is the categorical imperative. So virtue is concerned with action for the right subjective reasons and only the right reasons alone, no mixed incentives like I should volunteer because it is good and it looks good for college”. Right however, is concerned with the external world. In our interactions with other people, how do we make a system such that no one depends on any other, but only on their own choices? This is the goal Kant sets out for in his work.

That which is wrong is any action that violates the UPR, it is a hindrance to freedom. The person who kidnaps you wrongs you because they take your body for their own means, not yours, it is not something you consent to. By the law of contradiction, Kant argues that something that hinders a hindrance of freedom is indeed right.

A common thought is that which harms someone is wrong, but not on this account. You can be harmed, but not wronged. A new competiting sandwhich shop can open up across from the street of yours. Your new competitor does not harm you by opening a shop there. They do not wrong you by offering better sandwiches or a lower price, but they may harm you by taking away customers that would otherwise have been yours. Your freedom of choice and your independence has not changed, only the context in which you can exercise your freedom of choice.

Freedom of choice does not concern freedom of anything either. Freedom of choice is not freedom of wish, to choose something you must have the means to be able to do it. Freedom of choice is also not freedom to do whatever you want. Freedom, according the Universal Principle of Right, is where your maxim could coexist with everyone else’s freedom. Freedom to do whatever you want is not self-limiting because your wants can conflict with others wants, the UPR is by definition self-limiting. In otherwords, Kant’s concern is about what rightful limits can be put in place such that each person can remain independent. This is not surprising, since Kant’s writings on virtue are similar, in that freedom is sort of the power to choose to restrain ourselves in meaningful ways.

Innate Right

Kant states that there is only one innate right of humanity, which is

Freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belong to every human being in virtue of their humanity.

This innate right can be seen as just the individualization of the UPR, the UPR applied to just our persons. This right is the entitlement to exercise our freedom. It is the right that prevents us from being bound by others more than they are reciprocally bound by us, which is not a universal law. The innate right specifies that no person should use another person in a way that is would deprive them of the choice over their own person.

A way to show this is an example Ripstein uses. A dentist applies fluoride to their patient’s mouth, knowing that the patient does not want fluoride. Even if this brings benefits to the patient in terms of dental health, it is still wrong in that the dentist uses the patient’s person for their own ends.

The only ways in which the innate right is violated is in either use or injury. Either someone uses your person for some end you did not consent to or they constrain you, physically or not, from using your freedom of choice.

Kant also argues that innate right entails being beyond reproach”, meaning you can only have your deeds imputed to you. You can say this or that, but you are only responsible for the deeds you actually perform. Lying does not limit another’s freedom of choice, they can simply ignore the lie (this not the final word on falsehoods, e.g. you could be held liable for fraud or shouting fire).

Another implication of the innate right is your honor. You have a right to not be put under a new restriction by mere allegation. If someone claims that you have done something, some wrongful deed, they need to bear the burden of proof and not yourself. Otherwise, someone could constrain your freedom of choice.

Private Right

Your innate right concerns your person, something that you own, you control the means of your body. This does not get use property rights or other rights. To this Kant says a further postulate is needed. The reason a postulate is needed is that we need to apply the UPR to a new context. Insofar as there are other means outside of your body that can be in your control, we need to apply the UPR to these new objects. The reason innate right is different from private right is that some external objects that are not our bodies could belong to someone else, but our bodies could not belong to someone else (Locke argued that they belong to God, interestingly, we rent them like a car). Since these external objects could be mine or yours”, there needs to be some sort of process of acquisition.

So Kant believes that there are three and, importantly, only three acquired rights. Private property is where there are external objectsor things that we can use, the land and what we can make from the land. Contract right is where we can have someone else perform some service for us. There is status right where we could act on behalf of someone, to make arrangements for them. In sum, there are ends we can pursue independent of others and thus we need external means to this. There are ends we want to pursue that interdependently and we do so consensually,

Now, let us discuss these three areas of right a bit further.

Property Right

To have a right to some property is to be wronged when someone uses that object in a way without your consent. I cannot put my drink down from my hand and then someone take it in their hand and they claim it is theirs if I am to say I have a right to something. When I do not physically possess the drink, it must still be mine, this is what it means to have the right to call some object mine. It does not matter if someone uses your property in a way that you could have consented to, say someone wants to grab an apple from your apple tree because they have not eaten all day. It is still a wrong if you did not consent to this in the first place.

Contract Right

Contract right is similar, in that, insofar as it is possible for someone to do some deed for someone. If you sign a contract entitling someone to some deed or collection of deeds, and they fail to do so, they have wronged you by depriving you of something that you had a right to. If someone fails to uphold the contract, you have a right to get back what was yours, to be compensated for the wrong. The wrong of a contract right is similar because by me failing to perform the specified deed in the contract, I fail to advance your ends, I restricted your freedom of choice.

Status Right

The final category of private acquired right is status, or as Kant calls it, domestic right. Kant wrote this mainly arguing about the asymmetrical relationships that people in households usually have that are in a way nonconsensual, such as the relationship between parent and child. Kant also argues that spousal relationships are one of status right, but this is fairly complex and will pass over for sake of staying on task. Similarly, is the relationship of the house servant because of the difference in power. Kant imagines the house servant as someone who has no other place to live, so the servant cannot simply leave and find another job, so there must be another area of right that captures this different relationship. In sum, status right concerns the idea that one person may not enlist another in pursuit of his own ends without the latter’s consent”.

So the clearest example is the child. The child does not consent to being born and due to the way in which children become rational over time, for awhile they are incapable of consenting to other things as well. So a parent cannot use a child for their own ends, but must instead raise them in ways that benefit the child as if they could consent, such as being educated, fed well, housed, and kept healthy. Status right is a possession of a person, not literally, but in a way that you can act on someone else’s behalf.

One example is in education. Only the parent has a right to decide how to educate their child. If someone decides to take it on their own to teach some child that is not their own some religious teachings that are not the ones the parent wants to teach, then that person wrongs the parent’s right to their child. Also, this status right defends the right to parents to teach them in a way that they see fit, even if there would be some other adult that might raise them better. The right is not a right to teach the child to maximize benefit, but a right to act on the child’s behalf.

Another important example is the relationship of the fiduciary kind. Say, you allow a lawyer information to act on your behalf to advance your ends in defending yourself in court. The lawyer only has a right to act on the agreed upon ends in this case. Similarly, we trust our doctor with private health information in the same way to guide us in our own personal health. They only have a right to help us in making the choices we want to make, not to override our choice, even if it was to our benefit. Say, some pill would benefit me in relieving my pain, I still have the right to not take the pill if I do not want to.

Like the household servant, Ripstein has another example to nail this home. Say a professor asks their grad student to help them do some work at their house. At first glance, this could be seen as a consensual contract. Kant’s worry with status right is the quality of the consent. Due to the power structure, not saying yes might mean nothing, but it also might mean a professor treating them differently. It might be the difference between a decent letter of recommendation for a job or a great one.

In conclusion, these three areas of write are exhaustive of private right, rights we have in relation to other private individuals. You violate the property right of someone by destroying or using some external object of theirs. You violate their other rights by interfering with their end setting, either by not pursuing the end someone wanted (contract) or by using your relationship with them for your own end (status). What we have not discussed is how exactly you can rightfully acquire these private rights, such as property right specifically. For now, let us just assume, for example property, that someone owning a car and they acquiring it are not controversial or left up to debate. We will focus on just what entails from having rights to these three types of ways to set ends.

Data and technology problems

The introduction of data and computers makes figuring out what sort of laws and rights people should have in relation to this new technology is difficult. Largely, existing people in power can define laws in their favor, but it does not make them rightful. Here a few problems that currently exist and are up to debate which I will attempt to tackle.

Data doubles

There is this concept emerging in computer science and ethics called the data double”. As far as I understand it, it refers to the way in which systems interact not with you, but indirectly you through your data. Let us imagine that there is some bank that uses some information about yourself to determine if and how much of a loan you can get. You find out that you are denied, which is odd, because your friend who has similar financial credentials applied and got accepted. You start thinking, and it turns out the only real difference that might cause this is the color of your skin.

This turns out to be exactly what is happening in new machine learning models and recommendation systems around the country. The danger of getting this wrong is immense, as the flaws that are in a system will be deployed to every computer around the country as they all run the same version of software. If code perpetuates racial injustices in Florida, it will do so in Oregon. As banks, corporations, universities, police, and the government move to more digitized systems since on the whole they use less people and can be more efficient and effective.

If you were to be denied in person for a loan in a similar situation, this would surely be a civil rights violation. I argue that as long as these institutions move from real people to data doubles, people still retain the same rights. Your data double is protected by your innate right to freedom. Your innate right guarantees that you are beyond reproach and that only your deeds be imputed to you. On this account, being denied something based on your race or sex is not a deed. To be denied some loan from a bank not based on a deed violates your innate right. However, if you had a bad credit score or some other deeds that made it such that the bank could reasonably deny you a loan, this is rightful since it is based on your deeds.

So insofar as institutions move to representing yourself as data and not as real person, your innate right still protects your data double since institutions treat this data double as if it is your person.

Free speech on the internet

Another ever so present debate has been over free speech on the internet. I take two of the main legal concerns here as the main legal concerns from the left and the right political spectrums. On the right, people claim that the problem with tech companies is, in a sense, too authoritarian. They claim that companies like twitter silence free speech merely because their opinions are controversial, but they have done no wrong. On the left, people claim that things like widespread lies, fear mongering, and even speech that borders to threats and calls of violence are rampant and social media companies should limit or eradicate this as much as they can.

If you freedom of speech was being violated, this would be a major wrong on the Kantian account, it violates your innate right to freedom. But here is why I think that both sides miss the point of right and wrong.

Since Twitter and other social media platforms are private, you sign a contract to use it. This is usually referred to as the End User License Agreement (EULA). Just as if you are in someone’s house, you only have a right as long as they consent you being on there. If you say something offensive that they do not like, they can rightfully ask you to leave. Similarly, if Twitter says they do not want people who spew hateful speech on their platform, and this is in the EULA, then Twitter has the right ban you. If this is done programmatically, you can have a right to appeal to Twitter that it was wrongly done, but that would be the last case.

To the other issue about free speech, Kant would say that harm and falsehoods do not constitute any wrong of the rights currently discussed. If 15% of Twitter users retweet a QAnon conspiracy, there is no legal wrong being done. Even if the tweet causes harm in the sense that say, people think vaccines cause autism because of this tweet, then there is no legal wrong done. To note though, Kant has an account of public right where some things such as public safety and public health might be factors for this particular case of vaccination, but there is no wrong of private right being done here.

Cambridge Analytica

The problem with the Cambridge Analytica case I take it is that people’s data on Facebook were being used for ends they did not consent to. This would be the area of status right and particularly fiduciary right. When we use Facebook, part of the relationship we enter into is not merely a contract relation, but fiduciary. When we use Facebook, we know that our data is being used for certain purposes. When I use (hypothetically) Facebook, I expect that my data is being used in multiple ways. One is that my data is being used to further my needs of using Facebook. I want to meet new people, I want to find new pages of things I like, and I want to keep in touch with my friends and family. I also know that Facebook is free as long as my data is being used to serve me ads based on my interests. Assuming these ads do not violate my innate right (say, the advertise me things based on my race), but instead on my preferences, that is also something I could consent to.

Now, a lot of these things are things that people might not consent to, and that is fine, they do not have to use Facebook, or Facebook should have more fine grained data control, or another company may satisfy this person’s ends. Assuming we get this far, it seems that almost no user wants their data being used for non-social or non-advertising means, like helping a political candidate in their campaign. If a doctor used your private medical data to send to a drug company, that was gathering information about who to try and sell certain drugs to, this would be a violation of their fiduciary responsible. We should treat the wrong that Facebook did as similar.

In other words, we should consider the relationship we have with companies that use our data as not just one of contract, but also fiduciary.

Private digital property rights

One of the oldest and largest areas of debate in data and tech has been over privacy. As companies collect data on us, it is increasingly hard to be anonymous. Furthermore, sensitive data is used in a lot of internet transactions. The data we own, such as our SSN, birth date, etc., should be considered our own private property. This should also be extended to our messages, emails, and other files we store either in the cloud or on our own hard disks.

Take emails for example. When we use Gmail, we should own these emails. However, we also know that Google uses the data from the emails to try and optimize our experience and they also sell it wholesale with ads. So Google should consider the content of our emails as private, similar to our private mail. However, if we consent, Google has a fiduciary duty to only use the data for advertising and improving our experience of the app. Like Facebook, if you do not want to consent to the fiduciary part, there are other email services that do not use your data in this way and are secure.

Another example is torrenting. To torrent a movie is similar to stealing the movie. When you torrent a movie, you harm the owner of that movie. Even if you do not think the movie is worth $20 and would not have watched it anyway, it is still illegal and you violate the movie owner’s rights. If there is a lot of torrenting going on, it might be the move to reduce the price, or put your move on Neftlix or some other site where the cost of viewing a movie is substantially reduced than purchasing a DVD or watching in theaters.

There is another interesting case where something is very hard if not impossible to get in your country and there are no laws that protect the property of a person of another country from someone torrenting it elsewhere. Say, there is a movie that is only licensed in Korea, it is only sold in Korea. To torrent this would not wrong the movie owner in Korea since that property was only protected in Korea’s law.

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