When Citizens Become the Product

With Mark Zuckerberg testifying on Capitol Hill this week, it seems worth raising the related issue about how police technologies turn citizens’ data into the product.  The old adage that all tech companies are really data companies and you are the product is now reemerging in our collective consciousness.   But data companies are not just targeting your Facebook feed; they are also targeting the public infrastructure of policing and city services. 

Imagine you are cash-strapped city facing a violent crime problem and a sophisticated Silicon Valley company offers you free analytical services to reduce crime, clean up your archaic computer systems, and improve city services.  As a mayor, do you turn it down?

Imagine you are an underfunded police department facing public rebuke for failing to take police accountability seriously and a company offers you free body cameras for your entire department.  As a police chief, do you turn it down? 

These questions do not lend themselves to easy answers even though they already have been answered.  In New Orleans, for six years Mayor Mitch Landrieu took Palantir’s free offer to pilot its social network analysis to reduce shootings, implementing the technology without much public oversight.  Police departments all across America have taken Axon’s offer of free police-worn body cameras, creating long-term contractual relationships for data storage and analytics.   

These examples reveal the temptation of the digital age – by trading data for services city governments are getting needed improvements seemingly for free.  But there is always a cost.  Here the cost runs to the citizen.  And, unlike with personal data where you can control whether you give up your photos to Facebook or perhaps delete your account with big data surveillance you cannot consent to the collection and have no voice in the decision.

  

This is why it matters.  Without careful ground rules about data, cities can give up valuable public information for private commercial gain.  Linking together city databases might be very helpful to predict crimes or identify areas in need of city services, but the same public data can also be quite valuable for real estate developers, retail businesses, or consumer services.  Who owns the linked data and analysis?  Who benefits?  Who controls third party use if sold?  Similarly, police surveillance footage is helpful to monitor police behavior, but it also captures the daily actions of citizens going about their lives.  Without control over the data, companies can mine the footage to study patterns of movement, dress, and consumer preference.  Police officers could inadvertently become the data collection instruments for private enterprise trying to figure out the best place to build the next Starbucks with a host of open questions about who can use and profit from the publically-collected but privately-controlled data. 

As we move into an age of big data policing these questions are only going to grow.  As public-private partnerships increase and as “the Internet of Things” becomes embedded in the design of city infrastructure, the temptation to trade public data for private services will expand. While currently, companies like Palantir and Axon have recognized that overtly monetizing the public data they collect might create bad optics, as we have seen with Facebook sometimes companies can lose control of what is happening with their data.        

So who is advocating for more citizen control over citizen data being traded to private companies for public goods?  With the exception of a few progressive cities like Seattle, Oakland, Berkeley, and around Boston and the warnings of national civil rights organizations, there has been little discussion about any public oversight of public surveillance technologies.  And, even in those more engaged communities the focus is on privacy and the dangers of big data surveillance, not the commodification of public data. 

This should change.  The technologies of public surveillance – predictive policing, police body cameras, artificial intelligence enabled cameras, automated license plate readers etc., – are also data collection systems filled with valuable data points.  Just as the awareness of your Facebook data being commodified and used to manipulate election cycles offers a moment to reflect on the power of digital platforms, so too should city contracts between governments and private companies be scrutinized to see how citizen data is being used and protected.  Because unlike a single Facebook user who has no ability to shape global “terms of service” big cities do have real power to protect citizens’ interests in their negotiations with companies.  City lawyers can write contracts to protect public data and personal information, and refuse to deal with companies who will not restrict third party access. City governments can demand democratic oversight of public data.    

And here is where the lawyers and law professors come in.  Lawyers can think about risk and reward before the technology is implemented.  Lawyers can do the risk analysis of risk analytics.

America’s growing feeling of betrayal animating the fury toward Facebook is not that we gave up our secrets to a private company – we knew we were doing that – but more the loss of control over the data to manipulative third party actors.  The uncomfortable wake up call, however, is that as single users contracting with a large data company we really cannot control third party misuse.  We interact at the whims of the platforms without the ability to contract about our data.  But, cities can and should do a better job when using our public data.  If citizens are the product, city governments should be our protectors.  And lawyers and law professors can show them the way.