Avast Blog_ViewPoints: Who owns your data? Probably not you

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Supreme Court rulings show how technology and the law evolve

I would like to take a step back to take in a broader, bigger picture than usual in this article, moving across time as well as into the legal sphere. Technology isn’t just hardware and software; it’s a fundamental component of every aspect of our lives and our society.

When U.S. Attorney General William Barr recently admitted that adding backdoors for law enforcement made encryption less effective, it was, surprisingly, news. But for a long time, the U.S. government had been in public denial, saying that state surveillance and access could exist happily with top-level security. Now, as renowned expert Bruce Schneier wrote, we can have a real debate about this trade-off:

“With this change, we can finally have a sensible policy conversation. Yes, adding a backdoor increases our collective security because it allows law enforcement to eavesdrop on the bad guys. But adding that backdoor also decreases our collective security because the bad guys can eavesdrop on everyone. This is exactly the policy debate we should be having – not the fake one about whether or not we can have both security and surveillance.”

Whether you are for unbreakable encryption in public hands or not, in these matters it is essential to admit that we cannot have everything or make everyone happy all the time.

As our technology evolves, our laws must adapt to keep up. Entirely new laws, even entirely new regulatory branches, are required to address new inventions as they become commonplace. Millions of automobiles could not be regulated the same way as the horse-drawn carriage. Pharmaceuticals, airplanes, banks, telephones, food production, and weapons are regulated for the public interest – some would say too much and others too little.

This push and pull of private and public interest tends to create a functional equilibrium, although this can take decades and never truly end. Occasionally there are severe corrections, such as when the U.S. government broke up Rockefeller’s Standard Oil in 1911. Regulations often follow a crisis that captures public attention, which isn’t a bad way to go about it, although it would be nice to avoid such crises by getting ahead of them. Pre-emptive regulation can lead to overregulation, which can hamper innovation and investment.

Inventions aren’t created with social impact in mind, let alone legal repercussions. Profit is the usual driver, and the long-term effects are ignored and unknowable. A successful drug may turn out to have side-effects that go undetected for years and then be banned. Facebook and YouTube may contribute to political radicalization, but it’s hardly what the social network or video-sharing service were created for. It’s up to researchers, journalists, law enforcement, and eventually, politicians, to look into these effects and whether they are significant enough to spur regulatory action.

While our laws adapt constantly, what about our rights? Do they evolve along with new inventions? Isn’t the definition of a right something that is intrinsic, unchanging, eternal? Well, not exactly, for better and worse. Foundational documents in the annals of citizen rights, such as the English Magna Carta in 1215 and the American Bill of Rights in 1791, limit the power of government – kings and presidents and parliaments – over the people. That is, it’s not what the government has to do for you, but what the government cannot do to you.

For example, the Fourth Amendment to the U.S. Constitution protects a citizen against “searches and seizures” by the government without probable cause – usually requiring a warrant issued by a judge. (As every TV crime show watcher has learned, even if evidence of a crime is found, it might be discarded in court if it is obtained without such a warrant.)

But does the Fourth Amendment’s right to security in your “person, houses, papers, and effects” apply to your phone calls? To your web-surfing data, your purchasing preferences, or even your fingerprints and genomic code? Are these things also your property? Or do they belong to the owner of the server that stores them, or to the company whose algorithms extract them and process them?
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