Law in the Internet Society

Surveillance Capitalism: How Humans Became Commodities in the Age of Big Data

-- By ValeriaVouterakou - 25 Oct 2024

In today’s digital world, people are no longer merely individuals, they have metamorphosised into products. Unbeknownst to them, their data is scooped up, traded and even weaponised by corporations, advertisers, insurers and surveillance networks. Surveillance capitalism has turned personal information into a goldmine, fuelling an unregulated market where data is extracted, processed and sold, often without ‘real’ consent. This paper examines how personal data has become a high-value asset, influencing targeted advertising, financial transactions and healthcare all while operating in a legal sphere that remains opaque. It explores the debate on data ownership as a constitutional right and argues that uncontrolled commodification of personal data is not merely a privacy issue but a fundamental power imbalance that threatens autonomy.

How surveillance became a business model

The big data market is experiencing unprecedented growth with reports estimating it will reach $401.2 billion by 2028 (n1). Some argue that personal data is now more valuable than oil (n2). Tech giants such as Google and Meta have built business models around data extraction, monetising search histories, location and behavioural patterns for targeted ads. Google controls nearly 90% of the global search engine market. Meta, through pixels, tracks user interactions beyond its platform enabling cross platform ad targeting.

The 2018 Cambridge Analytica scandal exposed the unethical harvesting of Facebook (now Meta) data to create psychographic voter profiles allegedly swaying the 2016 U.S. presidential election and Brexit referendum. Facebook’s failure to protect user data led to a record $5 billion Federal Trade Commission fine and mandated changes to its privacy practices (n3).

The transformation of data processing into business models also prompts the question of data ownership. Data ownership differs across jurisdictions. The EU’s General Data Protection Regulation (the “GDPR”), grants individuals robust rights over their data, while the US lacks a comprehensive federal privacy law framework relying on patchwork of state regulations like the California Consumer Privacy Act (the “CCPA”), which offers comparatively less stringent protections. While the GDPR recognises the individual rights over shared data, it stops short of granting full, unconditional ownership. On the other hand, the argument for corporate ownership is that once users accept platform terms, their data becomes a business asset at the company’s discretion.

Should data ownership be a constitutional right?

In an era where personal data dictates access to financial opportunities, employment and healthcare, it must be recognised as an extension of the self, protected under constitutional principles. The Fourth Amendment safeguards individuals from unreasonable searches and seizures. The collection, processing and monetisation of personal data without express consent arguably constitutes a violation of this right, akin to trespass without a warrant. In Carpenter v United States (2018) (n4), the Supreme Court ruled that government access to cell phone location data without a warrant violated the Fourth Amendment. Applying this principle, corporations that exploit surveillance capitalism without meaningful consent should be held to the same scrutinY.

If data is an extension of the self, akin to property, it also implicates the Fifth Amendment’s Takings Clause, which prohibits the government from seizing private property without just compensation. Recognising personal data as a property right, would allow individuals to control its use and demand compensation when it is harvested and sold. Intellectual property laws protect creators from unauthorised use of their work. Similarly, individuals should own their digital footprints and receive compensation for their data. Expanding on this principle, the time individuals spend generating digital footprints should be treated as labour. Since corporations profit from this data, it should not be freely monetised without consent and compensation.

At the same time, it is important to recognise the structural mechanisms that disguise exploitation as convenience. The danger lies not only in the so-called loss of privacy but in the illusion of choice itself. If unchecked, surveillance capitalism could turn into a systemic paradigm where individuals unknowingly shape a Locke-inspired labour world, alienating themselves by commodifying their own existence. Unfortunately, corporations dictate consumer behaviour, fostering possessive individualism while eroding autonomy. If the commodification of self becomes normalised, what limits remain before human relationships are reduced to transactions and what will stop people from alienating their children in a fully commercialised dystopia.

The body as a data source

The rise of wearable tech like the Apple watch has allowed the collation of various body data such as monitoring the heart rate, tracking sleep cycles, and biometric data. However, most people fail to realise that this data is not private. Even when anonymised, it is sold to insurers, pharmaceutical companies and marketers.

Google’s acquisition of Fitbit marked a pivotal moment for the health data market. Google, already dominant in search and advertising, gained access to vast amount of global health data. Beyond antitrust concerns, this consolidation raises ethical issues. Google can now track real-time data on heart rates, sleep patterns and exercise habits, controlling not only digital but also physical footprints. This data can be leveraged to adjust health insurance premiums or integrated into behavioural profiling systems, reinforcing predictive analysis.

Conclusion

Surveillance capitalism has reduced individuals to commodities, disguising exploitation as convenience. As corporations dictate behaviour and erode autonomy, the illusion of choice masks deeper power imbalances. Without true data ownership, the very human existence risks becoming a mere economic output. To preserve autonomy, legal recognition of digital rights is essential before self-commodification becomes an irreversible cornerstone of modern society. While compensation for data carries a potential dystopian twist, the unchecked exploitation by corporations cannot remain the status quo. Without reform, individuals will continue to be mined for profit without consent, reinforcing a system where autonomy is sacrificed for corporate gain.

Endnotes

n1 - https://www.marketsandmarkets.com/PressReleases/big-data.asp

n2- https://northridgegroup.com/more-valuable-than-oil-data-reigns-in-todays-data-economy/#:~:text=Oil%20has%20reigned%20for%20centuries,it%2C%20is%20potentially%20more%20valuable.

n3- https://www.ftc.gov/business-guidance/blog/2019/07/ftcs-5-billion-facebook-settlement-record-breaking-and-history-making

n4 - https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf


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r4 - 27 Feb 2025 - 16:57:14 - ValeriaVouterakou
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