Even after GDPR, governments, businesses, consumer and civilian rights organizations are still failing at online privacy, and the mood around AI pioneers seems to be to shoot first and pay for the consequences later, no one seems to know what to do to protect us all against the theft and use of our data... whether it be by criminals, governments or tech-companies. Yet in this emotional discussion we are missing a strikingly obvious solution - not to mention a golden opportunity - that has been with us for centuries, even millennia. We can copy copyright law onto privacy law. Strap yourselves in for the Big Idea: Make all privacy law based on copyright law. Here we go...
Concerning privacy there are two questions relevant that are each others’ opposites: why are you hiding something from us versus why do you want to know something about me.
For business and government entities that benefit from the usage of personal online information the first question is always raised. If we protest against using our personal information they always ask: “Why? Do you have something to hide?”
For the consumer and citizen the question is always reversed. They ask these entities: “Why do you wish to have my information?” In the case of business the answer is profit. In the case of government or intelligence agencies the argument is to either to create a smoother bureaucracy or to protect us from harm.
As you can see, in the questions alone, normal consumers-slash-citizens already have a direct, 180 degrees opposite interest compared to businesses and governments.
And that's just asking the question...
A vicious privacy circle
These questions can have very complicated answers. With intelligence gathering the obvious follow-up question is: “If you wish to use my information without my consent, can I then to assume I am under criminal suspicion?” Our laws provide us with an answer in the presumption of innocence clause: everyone is presumed innocent until proven guilty. Governments are not allowed to spy on you without due cause. It's that simple.
Yet they do. They break that law. All. The. Time.
Why? In reality using non-consensual information can sometimes prevent crime and terrorism. Meaning we end up back at square one with both opposite questions. This vicious circle is pervasive. The gap is so wide that Edelmans Trustbarometer speaks of ‘The Age of Mistrust’ between business, government, consumer and citizen. While research after research - including Havas Media survey Meaningful Brands under close to 800.000 respondents worldwide - shows that consumers find their online privacy one of the crucially important things of our times.
And now, it is not only our private information under attack, but our professional information as well, with what many describe as The Greatest Theft In Human History - The birth of Artificial Intelligence Large Language Models that steel every bit of content we've ever made... without any permission whatsoever. Only the very few large companies, such as The New York Times can sue these AI-Monsters, for the rest of is, we're already screwed, since we've already been scraped.
And not even our source is provided in AI powered searches...
So how do we solve this conundrum? Well, the solution has been staring us in the face for about 2000 years now: view both private and professional data the same: as property.
An obvious solution
In other words, copyright law implemented on privacy law. The changing face of online interactions has created a situation where every individual profile resembles that of an artist profile. Content is content after all, regardless if you call yourself an artist or not. Or in short:
View private data as property.
In Roman law, the strongest law in their law books was that of possession, or property. These 'ownership laws' were created to make sure that no government or private enterprises could take away the land that you owned. The problem that Roman lawmakers faced was that soldiers who had finished their tour of duties, were promised a strip of land to become a farmer. Every soldier had that right. Yet, sometimes the powerful tried to take away that land - break the promise - so they could maintain these veteran, experienced soldiers within their armies. The movie Gladiator is based on such a story actually.
In order to safeguard these soldiers from such schemes by their executive branches, ownership, possession and property laws were made exceptionally strong, to the point of unbreakable, by the lawmakers/legislative branch.
These Roman laws are still used today, and are still pretty much the same as they were in the Roman Empire. They have mostly just expanded into ownership of other things beside land, such as owning a house, a car or a boat. Your personal possessions are protected by law. And today, these laws apply to your creative possessions as well, known as copyright. The foundations of this legal 'hard-line' ownership concept, are therefore found in copyright laws across the globe.
For artists the laws on image use, art output and general content distribution have been fleshed out for decades and even centuries. Of course, they are being broken - trampled really - by Silicon Valley at the moment, in their AI-fury. But from a legal point of view, they at least on paper, are very protective. Furthermore, these laws have been sharpened in recent years to extend them to the online space and let individual artists make their own choices on how their copyrighted content is allowed to spread, even including Creative Commons licenses and such.
In other words, the protection of ownership for the individual artist is already fully in place. While that of a ‘normal’ person is not.
But that’s not even the most important development. The best solutions don’t come from the laws themselves. They come from their effects in the real world. Because of these laws there are now both numerous protection agencies and countless thriving businesses that monitor and protect, but also monetize and spread copyrighted content across the web. Every time the artists’ content is used somewhere, it can be known to them and they can either profit from it or have the content removed.
This same principle, even the same technology and applications, can be used by private citizens as well. All they would need, is a new law that protects their online data in the same way as an artist is protected by copyrights. The moment this would be in place, we can start to apply for these protections.
And the beauty of it is, that it would force businesses to ask permission to use your data... which they would almost certainly do so by trying to offer you goodies and discounts and whatnot.
What lawmakers can do
These beneficial solutions are a perfect example of how lawmakers can have a positive impact, much in the same way as the original Roman lawmakers did. Because of lawmaking, entire industries are now profitable and fair. Just think of all the video, gaming and music services, including the giants such as YouTube and (finally profitable) Spotify. From distribution platforms to online creative courses and from rating systems to content protection agencies, gigantic networks are working daily in a system that is mutually beneficial to all players.
None of it is perfect of course. But compared to the abysmal state of personal profile protection, it works very well. Not to mention the fact that an individual can’t profit from his or her own social media content, while the artist always profits, however big or small, monetary or in reputation, from copyright law.
And the big kicker? The artists – or their representatives – have almost full control over both profile and content.
Fighting crime and terrorism
And it gets even more beautiful: copyright law can show us how to deal with crime and terrorism too. Like a gigantic collection of interconnected rafts on water, all of these agencies, businesses and services check and balance each other out to prevent fraud and crime… independent of government and intelligence interference.
While intelligence agencies have a duty to respond to malicious intent, the copyright system prevents it from happening in the first place. And if it does happen, they can immediately contact authorities, since they already have the information. In other words, spotting online wrongdoing is made easier because of all these interconnections. And only gets spotted when it occurs, meaning there is no spying needed on those who are innocent and are supposed to be protected by the innocence clause in law.
With similar laws to copyright in place for the private consumer/citizens on social media and online retail outlets, we will be able to stimulate a self-correcting mechanism that leads to extra profit. The individual determines what is communicated and whom they trust to profit from their personal data. And although this will first put some strain on businesses and governments, the end result will be a much smoother, safer and more profitable online space for them as well.
And a happy consumer, whose privacy wishes are finally met.
Everyone profits with more privacy protection
Ironically, those who are in the best position to profit from this sea change, but are most reluctant to do so, are social media companies. In this model, they can all of a sudden sell services to the group they have such a strained relationship with: their profile holders. This gives them an extra line of revenue from their own users.
This makes this idea a golden opportunity for lawmakers, governments, intelligence agencies and online businesses to stand side by side with consumers and citizens and bridge the gap in this age of distrust. They can show what they are truly worth to us through lawmaking, restoring the way government should actually work.
And thus, restoring much needed trust.
The alternative is that in this age of distrust, all of this very disruptive and invasive new tech will be forced to emerge through the exploits of 'good' Robin Hood style hackers, further widening the trust gaps instead of closing them, and failing to restore that much needed faith in one another during these times of deep crisis.
Will this help us with AI's 'scraping' our copyrighted material too? In fact, that may be the cherry on the cake. Laws themselves don't need to be changed that much with this AI thing going on: our works are still our works, AI be damned. Yet, we all know that our nice billionaires over there in the Valley don't give a rat's ass about us, so we're aware that nothing will change much.
Yet... the real benefit from strengthening privacy laws may be the business boom - and subsequent advances and innovations - that we would give to all those services that keep track of data for monetizing purposes. They may finally give as a shield to protect us from the AI's scraping our stuff.
So, in my view it is high time to change the story of privacy and extend the protections of original content of artists to the protections of original content of citizens and consumers. In other words: copy copyright law on privacy law. And make citizen-based privacy law (roughly) the same as artist-based copyright law.
We are all artists
If lawmakers make these laws, then in return we, the people get back our control over our online privacy. And then we build new and modify existent apps that provide us with both a defensive safety net and the opportunity to make money. A safety net that may, if we're lucky, even protect us more from the AI-revolution from the vultures over in Silicon Valley. Plus, the tech that is already functional, could actually be used by governments trying to protects us from terrorism and cyber crime, without them having to break the Innocence Clause.
In other words, if we are all considered artists, and we own our data by law, everybody thrives and no one needs to hide if they don’t want to.
Love, as always,
And check out my book The Whole Story - The Ultimate Guide to Storytelling here !!!
Rogier van Kralingen
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