In this Re-Meme mini-series, I outline several ways to contextualize what we're doing here at Re-Public. The hope is that one of these will resonate with you and inspire you to learn more or get involved.
I come from a family of lawyers, but I'm no legal expert, so take everything I say here related to legal feasibility with a grain of salt. That said, to the extent that our laws express some sort of first-principles fairness, I believe the meme of Re-Public enabling a historic class action lawsuit has merit.
If Re-Public is successful, people will finally understand the value of their data and will see the harms that Google and Facebook have caused by siphoning that value for themselves. A natural outcome of this realization would be a class action lawsuit or other legal action against data companies in order to recover value and disincentivize the continued collection and monetization of users' personal data.
There are several significant obstacles to bringing a lawsuit that will require the efforts of a legal team and other specialists, like terms of service and consent; precedent; causation and damages; etc.
Re-Public is focused on the biggest issue that no lawyer can help with — the question of Valuation. How can we bring a case when we don't know how much we are owed?
This is where Re-Public all started – as an attempt to answer the question: How much is our data worth?
Let's Find Out
There is currently no global open market for data. Mostly there are just the gray data markets and silo'd ad markets of Google and Facebook. When your data is sold, it's usually because it gets funneled into bidding markets where pricing bots compete to show you a relevant ad or attempt to convert you to a sale.
Industry insiders might quibble by citing exceptions and new developments, but that's kind of the point. We have no idea where our data is going, how it is being used, and least of all how much money it is making for other companies. If it is technically available, it's not easily accessible.
As is stands most of the current buyers of data are focused on advertising, marketing, or sales conversion. This is like trying to assess the price of soy beans when the only buyers are tofu manufacturers. Or assessing the price of oil when the only users of oil are consumer vehicles. Even though the current demand for personal data has built the largest companies in history, the fraction of potential demand that current markets capture is still tiny.
An open and accessible market would bring every potential buyer to the table and increase demand an enormous amount. Med-tech researchers, government agencies, data scientists, etc. Guess what a giant increase in demand does to price?
The small sliver of potential buyers and the kinds of data they are interested in has greatly distorted our internal sense of the monetary value of data towards the low end. Just how much Google and Facebook understand this under valuation would be interesting to find out in the discovery phase of a lawsuit.
The Data Pipeline
A useful way to look at your data and the harms caused by the status quo, is through the production pipeline of other resources. Let's use apples since oil is overused.
You are like an apple tree, producing apples every day. The apps you use are like the farmers who own the land you grow on. They give you water and adjust your environment to maximize yield. This care they deliver is analogous to the "free" apps we all use and love.
The apples (data) we generate, however, are just the raw material for a vast economic pipeline. The farmers sell the apples to various buyers, and those buyers process those apples into more elaborate and desirable products that they then sell at a premium and pocket the markup. Like applesauce and cider, companies are using our data to produce ad targeting, business intelligence, and machine learning models.
Meanwhile we are happy with our water. And we tell ourselves that it's good our apples make the farmers rich because that means we'll get more water and our lives will get better.
Re-Public aims to cutout the farmers and make you the wholesaler of your own apples. Phew, OK, I think that's as far as we can push that analogy.
But You Agreed To This!
What's wrong with that? This all seems to describe an above-board value exchange where Google and Facebook offer a desirable service and receive our data in return. We read the terms of service, we relinquish our rights, and we're happy to do so because of the lifestyle improvements these apps bring.
While this may be true in some cases, it's a bit like saying that everyone that gets into a car is fully aware that they could get thrown through the windshield if they don't wear their seatbelt, so we don't need seatbelts or laws because the people who care about that will buy seatbelts and it will all work out.
We have consumer protection laws, privacy laws, pharmaceutical regulations etc. precisely because things don't just work out. Power asymmetries are routinely used to exploit the average person and so we need some sort of collective acknowledgement and playbook to protect those in the herd who, in this case, understandably have not spent years educating themselves about internet architecture.
Most people who are aware of the problem to some degree, feel no agency at all because these apps are baked into the fabric of society and to "opt-out" is to "choose" a life apart from your friends, family, and mainstream culture. The social cost, the fact that it would take hundreds of hours per year to read all the ToS you agree to, the fact that the ToS can change at any time, that they are non-negotiable, that they bundle a ton of permissions all together ... it just feels like a silly theater that we're all forced to play along with.
Opting out may be technically possible for some people, but many jobs now require the use of at least one app that collects personal data and disables key functionality even if it does have a "private" mode. I personally can't see how we can reasonably expect someone who doesn't want to share their data to reasonably do so. I know how to do it and I don't bother with most of the best practices due to the costs associated with maintaining a vigilant lifestyle of data isolation.
As Tristan Harris at Center for Humane Technology points out, on one side of the computer you have your average human using Facebook or TikTok, and on the other side you have a huge team of the world's top software engineers optimizing the experience to best achieve their business objectives. It's a vast power asymmetry.
The average person doesn't understand how interface design can influence their behavior, or that the algorithm is training them to spend more of their time on the app and click more links.
Even if they understand this is happening, the specific ways that is manifested is shocking to most everyone except for the product builders. The builders that are explicitly leveraging research on the human brain to "optimize" the product. We all think we're smarter than the machine, but the whole point is that these companies know that we're not and they exploit our hubris.
The question is what legal terms does this asymmetry map to? Is it fraud? Is it unfair compensation? Re-Public can't give those answers, but we can be there with the hard numbers while those answers are explored.
The Pot Keeps Growing
Of course the appetite and enthusiasm for a lawsuit is pretty low if our data is only worth $30 per year, which is what estimates put for the average Facebook user's contribution to the company's ad revenue in 2020.
But each year these estimates get higher and higher as more and more people realize how valuable this data really is. Anecdotally, people I talk to who used to shorthand a user's data at $30 month now put it at around $500 per month. If there were an efficient open market, I think that's still way too low. The actual amount is besides that point, however, since this is something everyone should be able to know about the resource they produce.
Assuming the estimated value keeps rising, eventually it won't be difficult to convince people that not only is their current and future data given to these platforms valuable, but also all the data they've already handed over for years and years.
The idea is to have the Re-Public platform up and running by the time that happens so that we can be there with a literal answer for how much our data is worth. Then in court we can have concrete figures to point to and a reference point for damages.
What About Policy?
Out of all the conventional methods to regulate or instill fairness into the market, a class action lawsuit seems like the most tractable. There is precedent of people actually getting significant sums from companies at scale. The barrier to entry for each individual is low. Also, people have heard of it and generally feel positively about "class action".
More importantly, the governments around the world seem to be on at least a ten-year lag in responding to advances in technology. A class action lawsuit seems like a much quicker way to get justice for the most amount of people. Otherwise we'll continue to be where we are: Waiting for a group of politicians to figure out what the appropriate fines and taxes are to disincentivize Google and Facebook from exploiting users, and vastly underestimating.
A groundbreaking lawsuit that gets every user of Google potentially thousands of dollars in damages will do more to immediately change data company business models than any follow-on GDPR legislation.
This is not my torch to carry, but if you have some experience in class action or are motivated by this cause, I think it's a powerful story to tell about Re-Public and the fairness we're trying to instill in the data economy. Get in touch if this is you!
Cover image: Created with MidJourney