Should it be illegal for Facebook to sell your data?

- If you're in America, just standing on our soil, you as a person have privacy rights protected by the Constitution.

The stuff you do online, however, well, that's a whole different story.

- New trouble for Facebook this morning.

- The tech giant failed to protect the data of millions of users for being used for political purposes.

- With a political data firm, Cambridge Analytica.

- Obtained the personal information of more than 50 million users without their permission.

- They then combine it with your voting history, what you buy, where you shop, and even what you watch on TV.

- This morning, the chief executive from that company caught on camera apparently admitting they target candidates with dirty tricks.

- With that, they say they can predict the personality of every single adult in the United States.

(eerie music) - Everything you do online creates data, when you upload a selfie, when you shop, or even when you have a conversation with your cutie, it's all recorded, and even though it probably feels like your data, it's really not.

That's because, in current law, data is like your shoes or house plant, it's an object, a thing, you can own it, you can sell it to companies for money, and you can get in trouble if you steal it from someone else, but beyond that, it's just a house plant.

The history on how our country views data is kind of murky, so I called my friend Danielle from the Origin of Everything to clear a few things up.

- The Constitution does actually have a lot to say about property rights and even intellectual property rights.

For example, in section 8 of the Constitution, they basically created the legal framework for patent law, copyright law, and trademark law by giving Americans exclusive right to their creative output, and that's what the Capitol are, which means they meant it.

So basically make a thing, from an invention to a painting, it's yours, it's your property and you own it.

And they add it to this idea in the Amendments, the final sentence of the Fifth Amendment basically says that the government can't take someone's property away without paying them.

So, right from the start, the framers were like "Of course you can own stuff, that's protected by law," they just didn't know your stuff would one day be selfies with a flower crown filter.

- We're learning more about reports that data was unknowingly harvested from millions of Americans.

- All of the recent news surrounding Facebook is a great reminder that in America, our data is an object, when we log on, we are giving it to them, sort of like how you might give someone a bottle of wine when you show up at their house for dinner, there is no real legal structure in this country around how they can use it once you give it to them.

To start off, I want to talk about a phrase you've been using called surveillance capitalism, can you tell us what that means?

- Surveillance capitalism is the business model of spying on us, so there are many companies that offer us free services in exchange for the ability to spy on us and monetize the information.

All of us are being spied on, every one of us who uses a computer, uses a phone, we're all being spied on, computers naturally produce information about what they're doing, about our interactions with them, and the information is collected and bought and sold by the companies who are managing those products and services, so the obvious ones are Facebook and Google, it's also your cell phone company and your bank and your credit card company and everybody else that you interaction with.

- People are different, it says so right in our Bill of Rights, I as a person have certain freedoms, I have the freedom to believe what I want, the freedom to say what I want, the freedom to say no when a soldier wants to spend the night at my house, certain freedoms are more relevant today than others.

Okay, everything we've just talked about, it sounds like it should be against the law, so how do these companies get away with selling our information?

- So today, social media companies do all sorts of legal maneuvering so they can play nice with content ownership laws, for example, Instagram is pretty upfront that they do not claim ownership over your pictures or videos, you still own them yourself, but when you post them on their service, they do say that you're giving them permission to use them however they want, or as they put it, and take a deep breath, because this is a long one: You hereby grant Instagram a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content consistent with your privacy and application settings.

(sighs) So basically to use your houseplant example, they don't own your plant, but once you put it in their house, they can replant it in a new pot, split it into fifty plants, spray paint it purple, or do anything else because hey, you may own it but you've given away any rights to how it's used.

- This probably sounds obvious, but it's an important point, in the eyes of the law, there's a fundamental difference between me as a person and the objects I own.

But let's forget the policy for a minute.

What does your data feel like to you?

Remember, we're talking about your pictures, your videos, your conversations with friends, I'm guessing these things feel like you, an extension of yourself, so is it time for a Bill of Rights for our digital selves?

- Our laws were written using an old idea of privacy.

Today, our private stuff is somewhere else, like my most private secrets might be in my Gmail, stored on Google servers.

- It may sound far-fetched to be giving a bunch of ones and zeros the same rights as flesh and blood humans, but in many places, something similar to this is already happening.

In 2011, when Austrian law student Max Schrems asked Facebook to release his personal data, he started the movement that's still growing today.

- We have the basic problem that we have the mass surveillance scandal and we didn't really have any consequences in Europe, there were angry letters by politicians but nothing really happened.

- Max Schrems is an Austrian attorney who has been suing Facebook over the years trying to get his data, and that has been going through the European courts and he was very successful in ways Americans have not been in finding out what Facebook knew about him, and that's caused Facebook to change practices, now you can go online on Facebook's website and download the data that Facebook has on you.

- So is there anywhere outside of America where they've started to regulate surveillance capitalism?

- GDPR is a European law that stands for the General Data Protection Regulation, and it's a comprehensive privacy law out of the European Union that affects pretty much all aspects of computers and data.

- New rules implemented today in Europe designed to protect your privacy are affecting big tech companies here.

- The GDPR are tough new rules all companies operating in the European Union must obtain users' consent to use or sell any personal information.

- The GDPR just came into force about a month ago, and we haven't yet seen enforcement actions so what it really means is still to be seen because it will depend on how the European prosecutors and European courts enforce the different provisions.

- I gotta be honest, I don't know if a lot of people care that their information is being sold.

Can you tell us why this is so important?

- Privacy is our ability to present ourselves to the world as we see fit, it's our ability to craft how we are seen by others, and when that privacy is invaded, when your cell phone company can track your location, down to the meter and knows where you live, where you work, where you sleep, who you sleep with, that information is lost to you, you lost control of it.

- So what do you think?

Should companies be able to do whatever they want with our personal information?

Should we stop thinking about data like it's an old pair of shoes?

Should be maybe start treating it like we treat each other, and how would the country change if we did?

Let us know.

Hey everybody, this is Toussaint Morrison with America from Scratch.

In our next episode, we're gonna ask the question, should we have mandatory voting?

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