Our technological landscape tracks more than many realize, as Shoshana Zuboff describes in stunning detail across every page of The Age of Surveillance Capitalism: “Real-world activity is continuously rendered from phones, cars, streets, homes, shops, bodies, trees, buildings, airports, and cities back to the digital realm, where it finds new life as data ready for transformation into predictions.” Data capture’s association with pregnancy specifically has a strange media history. Back in 2012, Target faced a PR scandal when certain purchases associated with a woman’s browsing profile led the company to send her pregnancy-related coupons, outing her condition to her family. Digital trails feed predictive algorithms that get used as evidence, even though the algorithms themselves remain black boxes because they constitute trade secrets for the corporations behind them.
Data brokers capture and sell location, health, and personal data that police and others use to harass, misinform, and criminalize pregnant women, among others—and, already, the Border Patrol, the FBI, the IRS, and the Secret Service have contracts with data brokers, an alternative to the time-consuming effort of pursuing legal warrants. Anti-abortion groups have partnered with fertility health apps to identify users whose devices reveal their geolocation near a reproductive care clinic. The groups then try to direct advertisements and misinformation at them as they sit in a waiting room browsing online. Information entered into self-reporting reproductive health apps are not protected under HIPAA, nor is travel support provided by companies for abortion care, unless managed by a health insurance company.
Online searches are just some of the data extracted by law enforcement with the rise of digital forensics. Latice Fisher in Mississippi was arrested, tried, and jailed for a miscarriage because she had searched online for abortion information; the prosecutor presented that as evidence she had committed foeticide. In July 2022, criminal charges for a self-induced abortion were brought against 17-year-old Clarice Burgess based on a warrant to search her Facebook messages where she had spoken with her mother about her condition. Overall, anyone using apps or websites should be wary. (Health and Human Services has a data sheet for consumers on better understanding the public nature of information put into apps.)
Individuals can produce data but not own it or protect it, leading to wide-ranging privacy concerns. Political scientists, economists, computer scientists, and legal scholars, among others, have argued in favor of interpreting personal data as property. They argue that the rise of data analytics reinforces how data is an “asset created, manufactured, processed, stored, transferred, licensed, sold, and stolen,” and they dispute the argument that data’s lack of material substance impacts its actual and abstract relation to each person. Alongside this scholarly debate, a slew of companies arose to help people profit on their personal data, naturalizing this notion of property. The data exchange 360ofMe aims to centralize and contextualize personal information to help users cultivate greater self-knowledge as well as target the sale of such information. The CitizenMe app provides users with opportunities to gain rewards from businesses and charities who need data. Digi.me helps users aggregate personal data to share it knowingly with responsible businesses. BitClave uses blockchain technology to secure personal data, manage access, and enable sales opportunities.
The “data as property” argument leans into the market in order to alter the rights and regulations affecting the tech companies that sweep data about those producing it. But does it work? Morone took the aspirations of these middle-men as an opportunity to investigate the potential of a free-market solution. The results were disappointing.
Corporate Enclosure
When tech companies sweep up personal data from our strolling and scrolling across various sites, they may not know how they will use the data, but they do recognize its inherent value once merged, analyzed, and packaged for sale to advertisers and others. Everything we are doing online, and all that is being tracked about us offline, is an economic opportunity for companies somewhere. The value? Well over $1.5 billion, because now we are all the Six Million Dollar Man.
Since corporations can claim trade secrets, Morone decided to resist pervasive data capture by incorporating herself, so that the company, JLM Inc., contains the intellectual property and activities of the human Morone. If a corporation can be a person, perhaps a person could be a corporation and so protect their data! The articles of incorporation enable Morone’s data to qualify as intellectual property and thus purport to offer protections from the data marketplace. The human Morone’s privacy is possible because it is the product and trade secret of the company, JLM Inc., which is incorporated in the state of Delaware. With its own Court of Chancery that hears cases involving corporate law, Delaware’s legal structure is favorable to business. The state also does not collect corporate taxes from those that do business outside the state or tax “intangible assets”—like data.
