 And we're live. Hi, I'm Dazza Greenwood, a scientist at MIT Media Lab, where I run and curate law.mit.edu. And this video is a flipped classroom talk by one of our star speakers who we're all really looking forward to again at the next computational law course next week. Elizabeth Thrunaris. Elizabeth is the Global Policy Council at Evernim. You can also check out her private consulting work where she does policy consulting at hackylawyer.com. And we're going to talk about Elizabeth's breakout session on Thursday of next week, January 17th. It's advancing an article that we had written together late last year on competing legal frameworks for digital identity in a very real sense, finding the appropriate legal framework for humanity and human identity itself. Property model is one that has a lot of purchase right now, as it were. But there's also civil liberties and human rights models that seem like they ought to have one or someplace at least. And so to help us explore that, I would just want to welcome you and thank you for taking the time to come back into the family at MIT as the legal hacker that you are. We're in the right hat. And maybe you could give us a little more context about yourself and introduce your topic. Sure. Thanks for having me. It's good to be back at the legal forum. So as you mentioned, I am Global Policy Council at Evernim, which is a startup focused on blockchain based self sovereign identity. I am trained as a data protection and privacy lawyer practiced in the US, the UK and the Middle East very much focused on cross border privacy issues. And in the last three and a half to four years, I've been very focused on a blockchain distributed ledger technologies, cryptographic tokens and tokenization. And of course, now as you know, as all those things are converging very nicely. So I had the fortunate situation of ending up in a very niche area. And all of this, of course, is why I felt that it was important to offer a course on this topic of competing legal frameworks. As many of you know, you see a lot of new blockchain and crypto projects that tout marketing, like own your data and monetize your data and monetize your attention and token for this and digitize everything, tokenize everything. And it's become very ubiquitous marketing hyperbole often. And so to sort of counteract some of that, some of us here in the legal community are obviously very conscious of not letting the marketing get ahead of the law and policy and ethical frameworks that we need to be thinking about as we move into the data driven age. Here, here. And so with that in mind, you know, let's let's get into this this concept of what is the what is the prevailing legal framework right now as it relates to individual human identity and our most intimate personal data? Yeah, so I think in light of a lot of the breaches of trust and privacy abuses, data hacks that we've seen, particularly in the last year to year and a half. As I mentioned, there's been this paradigm shift of trying to return some control to the individual to the end user. The problem with the approach has been and it's obviously, you know, it's always concerning when it's the big social media networks and large online intermediaries who are using this language of owning your data. It kind of raises suspicion. So it feels as though, you know, if you were to look at sort of the buzzwords, the ownership model is really prevailing. And I have a theory of why that is. In a recent blog post that I wrote, I talked about the nature of data and the nature of data being different. So digital forms of things are different from their, their analog versions. Because data is basically, you know, the same format. It's just a series of binary zeros and ones. So once digitized, this data looks relatively, you know, interchangeable. It looks fungible. It looks transferable. And the word data itself derives from the Latin data, which is the past participle of the verb to give. So, you know, the word itself conveys this transferability, this liquidity. So I think the there's been sort of this tendency to view all forms of data or anything that's been digitized as also having those sort of transferable liquid properties. But there's a risk in that. And so part of what we want to look at in this course is, when is that an appropriate framework? When is it not an appropriate framework, if ever, if it's ever an appropriate framework? And what are the relevant risks that we need to assess in making that determination? Okay. All right. So, so let's do that. What do you think? Yes, I think we need to understand what the problem is. And as I mentioned, so I brought a prop, which is one of my favorite reads of last year, Victor Meyer Schumer, reinventing capitalism and the age of big data. So really important book for a number of reasons, but I think it does the best job I've seen of articulating what the big data age or what the data driven age is. And obviously we titled this course, you know, humanity and the data driven age. So I think understanding that is really is a good starting point. And I actually will, if I may, read a quote from the book. So he says that we fundamentally misjudge what the data age is all about. It's a move away from money and capital and appreciation of capturing the richness of reality through the richness of data and embrace of the market over the firm, and an exceptional opportunity to improve the human ability to coordinate. So this is a very optimistic view of the data driven age. And the idea is that we're shifting away from finance capitalism or money as our sort of mode of capitalism to data capitalism, where data becomes currency like or money like. And again, I think a lot of this has to do with the properties of data. But we're turning things into data now that we weren't turning into data before. So, you know, we've always turned, you know, for a long time now, we've had digital money. Obviously, now we have things like cryptocurrencies. We've turned speech into data. So we have many platforms, digital platforms for speech and for expression. And we've turned copyrightable works into data, obviously, music and ebooks. But what happens when we move into things like, you know, the human genome, and we start digitizing our genetics, our genetic code, what happens when human behavior itself in what Shoshana Zuboff calls the age of surveillance capitalism, what happens when all of our activity is tracked, both online, you know, while we're surfing the web, but also offline through an array of digital trackers of smart devices and smartware, smart home devices, smart cars, retail beacons, surveillance cameras, all kinds of biomarkers. What happens when we're tracked in every moment in every aspect of our lives? And all of that is being transformed into data. You can see how we're talking about new things that have particular rights and concerns that attach to them. So I'll stop there if you have a question. Otherwise, I'll explain an important dichotomy here as well. Yeah, I think we should dive right into the to, you know, unpack more of the context and where the dividing lines and dichotomies are. And then let me pipe in a little bit more once you've got through that. Sure. So let's let's start with this. It's a useful sort of dichotomy, but it's not perfect. So they're, in my view, two types of sort of digital assets or data. And one set is what I call a native digital asset. So it's something that's wholly created in digital form. So take a very popular example right now, Bitcoin. Take a very different set. So the next set would be what I call a digital twin. So digital twin is basically just a digital representation of something that lives in the real world, whether it's a physical asset, people, a place, a system, a device, anything in the real world, anything in analog form in digital representation. So you've got these native digital assets, and you've got digital twins. And we have certain rights that attach in the real world to the analog version of a digital twin that we cannot lose sight of once we digitize them and turn them into data. So people is a really good example in the industry that I'm in, in identity. If we accept that all kinds of data, whatever the nature, whether they're native digital assets or digital twins are subject to the same set of rules. So for example, we'll walk through the property law approach and are now transferable, alienable and for sale. What does that mean for, you know, digitizing identity? And what happens to our identity? Can we lose ownership of our own identity? So these are the kinds of things that we want to explore. So we want to make sure that that dichotomy is clear. Got it. So in the case of of digital identity of a human being, we've got the digital part would be a digital twin when we're driving it. And it's a twin of, you know, the human live person. And then with a digital asset that was, you know, born digital such as Bitcoin, that would be a native and it doesn't have this analog where it's reflecting or emanating from like a dollar or or like a coin. Is that the basic idea? That's the basic idea. And of course, there's nuances and flavors. And these are best practice sort of in thought experiments, which is some of what we'll walk through as well. Okay. All right, let's move on. So again, the question is what's the problem of treating all data the same? And the fundamental problem to understand and why bringing that dichotomy is because data represents different things. And those different things live in different real world contexts and come from different different rights. So for example, if we're digitizing speech effectively and returning speech into data, if we start treating the data as something that can be property that's freely traded and owned, what happens to speed traits? So and again, we'll get into this some more. So basically, what we're asking is, you know, what happens if we treat all data the same way? They're obviously significant risks there. So if we can't, then how do we treat digital things in the form of data? And what are the best approaches? So we can dive right into this sort of two predominant approaches right now. And you already mentioned the first, which is this property law approach. So what I want to do is just sort of walk through what the key characteristics are and then we could discuss some of the pros and cons and perhaps a lot experiment. Does that work? Yep, that's perfect. And that will set us up beautifully for a really engaging discussion next week. So let's do it. Great. So the first thing to understand about the property law approach is that it's based on two fundamental principles of law. So the notion of private property and the notion of freedom of contract. And so many of us are familiar with different forms of private property. So you have things like real property, land and homes, you have things like personal property or movable property. And you have you have intellectual property, of course, which is also incredibly relevant to this conversation. So those are sort of big buckets of private property and private property is subject to what we call the freedom of contract. So I don't need government intervention necessarily to, you know, sell you something or to have a private commercial agreement. We have something called the Uniform Commercial Code in the United States where in other jurisdictions where contracts for, you know, for goods have certain rules around them. And there's a sort of self regulatory framework through which contract law is interpreted. So those two things kind of form the foundation of the property law approach. And a lot of this is based on sort of a neoliberal theory or classical market based capitalism. So Adam Smith's, you know, invisible hand doesn't require any regulatory or governmental interference or intervention. So that's focused, of course, on the rights of capital, the rights of capital and of individuals in particular, to leverage their capital above sort of other rights. So there's this sort of hierarchy of rights that applies in the in the neoliberal approach to property rights paradigm. So what's key to understand here and very important the context of data and particularly personal data is that the property law approach is really motivated by economics and by financial incentive. So if you think about something like intellectual property law, and you think about core motivations for designing the kind of legal framework we have, for example, in the United States, our approach to patents or for example, copyright, we have something called the incentive theory of intellectual property. And so we're designing these rules and these legal frameworks to incentivize innovation and invention and things that we're trying to protect with IP. And the idea is that you sort of need these legal rights to, to incentivize that kind of behavior and that people are creating because they're motivated by protecting the sort of economic and financial interests. Now, of course, this is an prevailing framework around the world. They're very different systems. There are things like moral rights that attach in jurisdictions in Europe, for example. So it's not, you know, it's not the only approach to the similar subject matter, but it's definitely based on this property law approach based on the notions of private property and freedom of contract. So that's, you know, that's a very different motivation from what we'll explore in the rights based approach. And any questions there? No, I think that makes a lot of sense. So we've got this property model. And, and it is being applied, you know, almost exclusively in people's minds to data as a form of personal property and intellectual property. And I think, I think people, and I think I understand that I think people can get their head around that. So now let's move forward to other legal frameworks that maybe ought to apply as well, or instead of Yeah, let's just, just one more thing on the property approach. So it's important to keep in mind that another characteristic of these property rights, whether, you know, their IP or real property is that they are alienable. So they can be transferred, they can be waived and they can be surrendered. So just keep that in mind as we as we move into sort of the competing framework, which we call the rights based approach. And this can have a lot of different terms. So for some, this is a human rights based approach. And those human rights are something that derive from, from natural law, right? So we don't need, we don't even need to codify them because they're sort of fundamental rights that exist in natural law that we all know and recognize and they attach to a person. But they, they're often codified in something like an international convention or treaty or declaration on human rights or convention on human rights or political rights. So, but fundamentally it's this, this natural law based fundamental rights based approach. Sometimes that's also incorporated into constitutions or constitutional rights approaches. Now, I say sometimes, but not always. So even within the US Constitution, for example, you know, we have this hierarchy of the Bill of Rights and then the rest of the Constitution. So there's this demarcation of a hierarchy of sort of more fundamental rights and other rights. And those are subject to different frameworks. And in the constitutional setting, you would need something like, you know, constitutional amendment to overcome the challenge, the status of those rights. And then sometimes you have an extension of, you know, we call civil rights. And again, sometimes codified in the Constitution, sometimes not sometimes in a relevant international law or treaty. But the idea is that these are not coming from private property and freedom of contract. These are coming from a different emanating from a different source. Right. So like the fourth amendment, you know, the first amendment, right, a free speech, that sort of stuff, which I guess in the US, you could say it, you know, the enforceable right is found in our Constitution and the amendment. And then, but if you go back and read the Federalist Papers and the, you know, the jurisprudence and political theory of the time, they're really just codifying what we're thought to be rights inherent from the people, you know, who, you know, if you look at John Locke and people like that, they felt that we're born with these rights. And part of the political deal, if I remember correctly, was that we'll pass the Constitution now with the understanding that we'll be adding these fundamental rights to them as soon as we can draft that. But, but yeah, so I think that makes all kinds of sense. You didn't mention so maybe I'll just sprinkle a little context. Also statutes like the Civil Rights Act and voting rights acts. And then you see the down in regulation and another sources of policy and law. Yeah. And of course, those are relevant. And but often what they're doing is codifying a specific implementation of existing fundamental rights. So those are really good examples. And, you know, if we think about, again, the personal data context, we think about the GDPR, for example, in Europe, being a rights based approach. And it's talking about, you know, it hearkens to the Universal Declaration of Human Rights and the European Convention on Human Rights and it's talking about the convention. It's talking about the sources of law coming from those fundamental rights. But it's codifying against sort of an implementation. But that's absolutely right. Okay, let's move on. So, you know, in stark contrast to the property based approach, which again, I said was motivated by, you know, economic or financial incentives. There's a very different motivation for the rights based approach. And it's something that some scholars called dignitary rights. So dignitary sounds like what it is, it's based on sort of the dignity human dignity that attaches again to the mere fact of being human. So these are things that are, you know, intrinsic that emanate from the fact of being human from our humanity itself. So there's a risk, of course, in propertizing and commercializing everything that we're threatening sort of the dignitary nature of some of the rights that attach here. And what's really important too is the legal process for violation of something like human rights doesn't require this, this requires a different standard to basically seek justice through a judicial mechanism. So one thing that we've seen happening a lot in the context of large in online intermediaries, social media platforms and the like is that when individuals try and bring a private right of action and challenge some of the practices that are, you know, maybe violating privacy, they often will be unsuccessful because the lack standing, because they haven't shown a so-called concrete harm. But that harm is being construed in the context in the US, for example, a very conventional common law harms where you'd have, you know, a financial harm or something other, some of their concrete harm that kind of overlooks, you know, if it were based on a fundamental rights, a rights based approach and human dignity wouldn't even require that showing. So that just gives you an example of how the paradigm shift is really important from an actual, from actually giving these rights effect. Right. So I know one of the parts of the article that we wrote that I think that made a real impact was defining, or well, I guess describing some of the nature of these human rights legal frameworks, or that the rights that people are endowed with from birth are universal, indivisible, and inalienable. Yeah. And to me, I think you're getting at that, but those three words say a lot, and they, they do starkly contrast with the, with the features of a legal framework that's property and commercial based. Yeah, very much. So universal in the sense that, you know, while they are very much endowed, you know, the individual has these rights and yet they're not focused on the individual, they're universal in the sense that, you know, I don't have those rights because I'm Elizabeth and you don't have them because you're Gaza. We universally have them because we're part of this set of being human. And they're indivisible because they're not sort of this property law theory of rights where, you know, they're a bundle of rights where you have possession and exclusion and these different things that you can break up into different pieces and have different people owning at different times. They are, you know, it's, it's kind of all or nothing. You can't have partial human rights. And the inalienable is really important as well because they, these rights cannot be transferred. They cannot be waived and they cannot be surrendered. So, you know, anyone purporting to have a contract or you're waiving some of these fundamental rights, you know, the contract's indelible. So important distinction there. Yeah. So it can't be consented away at the click of a button. Right. One stark way to say that, I think. Yeah. It's a great way to say that, exactly. Okay. So let's move on a little more. Okay. So a lot of this might seem, you know, quite murky or amorphous. So, I mean, one thing we might do is look at just a thought experiment and how some of this is different. And one of the things that we mentioned in our, in our article we wrote together was this idea that even things that are property like or taking it even further, even things that are property, that does not necessarily mean that they're subject to a property law-based legal framework. Right. So we have in the U.S. Constitution, you know, a right to our person and our papers, you know, we have rights that attach to physical things. So papers and effects might be considered personal property, but there's still, there could still be a fundamental right attached to that. So one thought experiment I think is really interesting is the example of a journal. So if I think about, you know, an old-fashioned paperback journal, you know, with paper and pen that I would use for, you know, keeping my diary or my journal, if you think about the journal as property, you know, you can go to the shop and you make a purchase and you exchange, you know, payment and you obtain a receipt and now you've transferred ownership, you have purchased the journal and you are the rightful owner of that journal. It would be very hard to claim that, you know, that the manufacturer or the retailer who sold you that journal has any rights or interest in anything that you, you know, that you write in it and or has any intellectual property in, you know, a poem or a song that you would write in it or a drawing that you might have a patent, you know, that you want a patent. They, you know, and typically this is not an issue in the analog world because they wouldn't have any access to it. You know, if you purchase that in cash, they probably doesn't, you know, wouldn't even know who possessed it. But digital is different, right? It's very different. So imagine an app, you know, a journaling app that you can download in the app store or the Google Play Store. And, you know, I think there's a tendency sometimes in the technical community and industry to sell these things as basically just digital equivalents. And, you know, that's dangerous because if you tell someone it's a digital equivalent, well, they might have a similar expectation of privacy. So they might think that, you know, that the contents of their journal are private, right? And that the, you know, the app developer has no interest in anything that they, you know, keep in their journal. But we know that digital is different, right? We know that there are far more significant risks of interference, of hacking, of intrusions, of the app disappearing from your phone, right, of not functioning anymore, of being backed up in the cloud, of myriad ways that the digital version is different. And so we have to think about is, you know, if these things are being turned into data, you know, we don't, we don't want to lose, obviously, fundamental rights that would attach to, you know, the sort of analog version of these things, because then we basically lose all of our rights apart from the freedom to contract. So, and I don't know if you want to take that one further, but it's the kind of thing that we'd want to explore to really get specific about how these rights might apply. Yeah, I think, I think what you're saying is a great example with a journal so I just dug my bullet journal out of my bag. And, you know, it occurs to me that, you know, it, well, there's a couple of things, I guess, to distinguish. One of them is in terms of basic expectations of privacy. There's the first sale doctrine that applies to this physical instantiation where, you know, it's one and done and sells complete title to the personal property vests in the person that bought it. And there's no continuing interest. They can't take it back if you, it's not like a subscription or a lease or something like that. And by contrast with these online services, they're more like services. And then the ownership, if you read through the terms and conditions on some long rainy, you know, weekend month, then you could, then it becomes quite clear that, you know, many rights are maintained by the provider of the service to do various things with the content for service quality or analytics or even to resell it in some cases. You know, you know, now come the, you know, the nightmare scenarios of Cambridge Analytica and the, you know, privacy implosions of the end of last year. And so that's one thing that distinguishes. The thing I would even, there was thinking about a step further, since you mentioned papers and effects, which is a part of our fourth amendment protections for, you know, well, that could very much apply to a journal that was in my, on my person in a pocket or in my dresser drawer for government to take those, you know, we have a different, a very different legal regime, you know, they need some kind of cause and sometimes they may even need to get a warrant. And it's going to be very specific because it's, it's not because, because they're so tightly associated with our liberty and our, and our autonomy and in a sense, our identity is free people that consent to be governed. I mean, that's part of the basic deal. Interestingly, it starts to blur the line. And I know you're going to talk about this a bit in your, in your talk between, you know, a journal is at once sometimes property, like when I go to the moleskin or somewhere and purchase it. And sometimes it's an extension of my identity. I mean, there's different legal frameworks that can actually apply to the same, to the same artifact and that's kind of ups the ante a little bit with complexity when it's not one or the other. But when the context may determine which legal framework applies and when and to what. Yeah, and I think one of the biggest risks with the property law approach is it sort of crowds out the other rights. And so again, if all of it, you know, if you have these, this data that has these dual purposes. So again, look at, if you look at the blockchain or crypto context, so you have tokens that might represent, you know, money, they might represent value, but they might also represent speech, particularly when you look at, you know, the attention economy or other assets that have, you know, both a consumptive and an expressive purpose. And the property law approach doesn't leave any room for protecting things like speech and expression. So I think it's really important that that we think these things through from these thought experiments because in the abstract, it's very easy to oversimplify and to lose sight of really important things. But I think an important distinction example you made was that, you know, we've got these robust protections from interference by government. But in the data driven age, you know, the big concern is really more from, from, you know, the commercial sector, from the private sector. The potential for interference and, you know, privacy breaches is really coming from, you know, commercial goods and services providers. So it's, you know, we don't have the same kind of protections from, you know, GAFA that we do from from the government. So we have, we haven't updated sort of our thinking and our legal frameworks around that. And, and, you know, if these things were perpetrated by the government, I think people would be up in arms, but they're sort of OK with it coming from service providers because, you know, they're often they're not appreciating the trade officer, they're not appreciating the consequences or significance or their, you know, like you said, they're really just not even sure of what it is that they're purchasing that, you know, that it's a service or that it's very different in nature. So that's part of the awareness that we need to, that we need to get to. Here here. OK, so is there is there any other kind of context setting or, you know, kind of foundation laying that that that we should add now so people are ready for the discussion? Yeah, so a lot of this we think about in the future and we think, you know, hypothetically, but we do have some concrete examples of this question coming to a head in the past. And so one of the recommended reading materials in the Github repository is a book on publicity. So it's Jennifer Rothman's The Right of Publicity, Privacy or Imagination for Public World. And it's really, really important and interesting, historical kind of legal research study on what happened to the right of publicity, which was originally derived from the right of privacy and how it was how it evolved very much because of Hollywood and entertainment lobby. It was converted into a more a propertized IP type, right? And actually crowded out the individual from their own ability to exercise the protections that were meant to sort of originally be baked into the right of publicity. So and she talks about how if we recalibrated the right of publicity and might actually help individuals in the context of owning their digital presence and their digital identity, intrusions by social media and other online intermediaries. So there are a lot of lessons in there about the risks of the property property based approach that again are not hypothetical and she does very thorough studies of quantitative and qualitative analyses of kind of how the right evolved and what the consequences were to the individual and commercially. So highly recommend that one as well because it's useful again to just not think about the hypothetical but to learn from kind of, you know, the mistakes we made in the past as legal architects. Yes, agreed. And so just to show people, let me see if I can screen share a little bit. This is where you can find all of this wonderfulness. Here we go. Is this coming through? Can you see the article? OK, so here's our class page which you can get to at law.mit.edu forward slash learning. And here's the 2019 class. You scroll down to day three where we're doing our breakout sessions. Here is there is Elizabeth's. And if you kind of click here, well, as soon as this hangout on air is done, we'll have a YouTube. So we'll we'll put the YouTube video there. You click on the working notes. You can get to links to this article and to all of that good stuff. Here's the article which really did go viral. I think when we put it out. So we stop my screen share here. There we go. I guess the only other thing I would if I could add one thing that I hope people can be thinking about is, you know, how much of this remains to be thought through. And and there's there's a dialogue that's going to be needed at the policy level politically and socially to figure what what aspects of personal data. Do we consider in the category of human rights and, you know, kind of civil liberty stuff? And what aspects would be in, you know, outside of that? So when I think about, you know, the right of publicity, I think we've settled now over decades and decades that if you're walking on a public sidewalk and someone sees you, it's that's one thing. If you're in your house or you've got you kind of made a personal video of yourself, you've got is a different legal framework that applies to right of publicity and and privacy rights. What does that look like for things like our location data? And does it matter what the source of it is? Like when I when I use the New York subway or or a subway system where I've got a monthly card and I'm tracked for legitimate purposes to see how many rides I've taken. Is that different from the transponder on my phone and tracking me around or is the I don't know when we when we chat on Telegram, obviously they have a copy of what we're saying. But but that doesn't mean they own the right to speak for us and they don't they've not assumed our freedom of speech right. We as the you know, the as the principle of a holder of those human rights. And so we'll have to find some what there's a lot more discussion to be had to figure out what is in the ambit of human rights, what is outside the ambit. And then when do you know which framework applies, especially at the blurry margins? Yeah, I think that's right. And I think it's also important to keep in mind, you know, the individual versus the collective. A lot of these, you know, do we want to have individual rights that might, you know, disadvantage the collective if we're thinking about things like, you know, research or science? Do we want to have, you know, propertizable interests that, you know, prevent some of those sort of common societal goals? I mean, there's a lot of complexity to this. But we are seeing a lot of fast moves commercially towards this ownership model. So we'll consider this course an intervention before it's too late. Yeah, here here. So yeah, it's like a loving intervention to a family member in the body politic. But but the big news here is wake up everybody. There's more than one legal framework that does an ought to apply to our identities online and to our personal data. It's not all commerce. There's also much longer standing time honored and critical jurisprudential and political and social conventions, the social compact itself between free people operating in free markets. And so there's some more work to be done here. And I'm glad that they were sort of raising the flag here so people can have a begin more of a meaningful discussion and we can get there. Exactly. Yeah, it's exactly the right way to put it. There's more than just commercial interests at stake. And I think as long as we only focus on the commercial interests, then there's really no point, right? What's left? So, yeah, thank you for the opportunity to present some of this. Thank you for taking time. I know you're like one of the busiest people on the planet right now. You're in such a hot corner of the economy and doing some such great stuff. So we really appreciate your taking time to come back and rejoin your extended family at MIT. And and for those of you that need a reminder, Elizabeth's session is one of the breakouts on Thursday, January 17th. And and check out this video. Go to the wiki page, read the background, and get ready for a terrific dialogue with our friend and colleague, Elizabeth Ronaris, hacky lawyer. Thank you, Elizabeth. Thanks so much, Dazza. Talk to you.