How does the proliferation of data in our modern economy affect our legal system? Scholars that have addressed the question have nearly universally agreed that the dramatic increases in the amount of data available to companies, as well as the new uses to which that data is being put, raise fundamental problems for our regulatory structures. But just what those problems might be remains an area of deep disagreement. Some argue that the problem with data is that current uses lead to discriminatory results that harm minority groups. Some argue that the problem with data is that it impinges on the privacy interests of citizens. Still others argue that the problem with data is that its remarkable efficacy as a tool will lead to disruptions in labor markets. This Article will argue that the disagreements about data and its harms in modern society are the result of overly compartmentalized analyses of the nature of data itself.
Data, after all, is a strikingly broad concept, one that spans everything from where you ate breakfast today to the genetic markers in your DNA to the returns on your 401(k) last year. By focusing narrowly on specific segments of the data industry, both scholars and policymakers have crafted a set of conflicting rules and recommendations that fail to address the core problem of data itself. This Article aims to correct this gap. First, it provides a taxonomy of the core features of the data economy today and the various behaviors, both positive and negative, that these features make possible. Second, the Article categorizes the types of arguments made about costs and benefits of wider data usage. Finally, the Article argues that the only way to reconcile the varied and overlapping approaches to da-ta in our current regulatory system is to create a more unified law of data. This unified law of data would set forth harmonized and consistent rules for the gathering, storage, and use of data, and it would establish rules to incentivize beneficial data practices and sanction harmful ones. Ultimately, the Article concludes, governing data will require a more comprehensive approach than the limited and piece-meal efforts that have ruled to date.
Magnuson, William J., A Unified Theory of Data (September 8, 2020). Harvard Journal on Legislation, Forthcoming,