This Essay lays out and defends a particular account of the kinds of legal interests people have in social data. It argues that datafication implicates not only rights against personal intrusion (and duties not to intrude on others), but also—and at times instead—rights against (legally relevant forms of) group-based subordination, as well as duties not to subordinate others.
Standard legal accounts of what makes datafication wrongful focus on the individual data subject herself. The primary account views governing data as governing the boundaries of a data subject’s sphere of autonomy. This casts data about the data subject as a commodified form of intimate, inner knowledge about the data subject—a bit of herself rendered legible via a data flow to some external knower (or set of knowers). Under this account, data governance law mediates the boundaries of the personal sphere (or bubble) of autonomy and knowability around the data subject. The distinguishing feature—what renders access and legibility legally sanctioned or not—is permission to enter a protected sphere of autonomy. On this account of wrongful legibility, datafication disturbs one’s ability to enjoy a privileged and secure relationship to one’s self and may undermine or corrupt that relationship. On this view, datafication is a potential form of violation—akin to entering someone’s home without permission. This raises a related concern; that by breaking down the sphere of selfhood, unconsented-to datafication violates core moral precepts to treat the data subject as her own moral agent.
This Essay will defend an alternative account. It argues that datafying social life is not wrong as an interpersonal act (rendering people legible) but in virtue of the social facts it reveals and reifies: the constitution and enactment of social groupness in subordinating ways. This suggests that insofar as the law grants people rights to information about themselves, it is (in some instances at least) the right to have a say in the terms of certain, legally relevant forms of social constitution occurring via data relations—and a duty not to subordinate others. This in turn suggests a particular legal agenda: identifying and intervening on the legally relevant forms of wrongful subordination.
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