Confronting Data Inequality*

ANGELINA FISHER** & THOMAS STREINZ***

Control over data conveys significant social, economic, and political power. Unequal control over data—a pervasive form of digital inequality—is a problem for economic development, human agency, and collective self-determination that needs to be addressed. This Article takes steps in this direction by analyzing the extent to which law facilitates unequal control over data and by suggesting ways in which legal interventions could lead to more equal control over data. We use the term "data inequality" to capture unequal control over data-not only in terms of having or not having data, but also in terms of having or not having the ''power to datafy" (i.e., deciding what becomes or does not become data). We argue that data inequality is a function of unequal control over the infrastructures that generate, shape, process, store, transfer, and use data. Existing law often regulates data as an object to be transferred, protected, shared, and exploited and is not always attuned to the salience of infrastructural control over data. While there are no easy solutions to the variegated causes and consequences of data inequality, we suggest that retaining flexibility to experiment with different approaches; reclaiming infrastructural control; systematically demanding enhanced transparency; pooling data and bargaining power; and developing differentiated and conditional access to data mechanisms may help in confronting data inequality more effectively going forward.

* This Article originated as a background paper for the World Development Report 2021: Data for Better Lives. We are very grateful to Victoria Adelmant, Adele Barzelay, Elettra Bietti, Nikolas Guggenberger, Niels ten Oever, Edefe Ojomo, Przemyslaw Palka, David Satola, Daniel Sive, David Stein, Dimitri van den Meerssche, Christiaan van Veen, Roxana Vatanparast, and Anna Yamaoka-Enkerlin for their careful comments, incisive questions, and constructive suggestions. We also thank the participants at NYU School of Law's Information Law Institute's Privacy Research Group for their valuable feedback when we presented this project for the first time. Katie Holland, Rachel Jones, and Maxwell Votey provided indispensable editorial assistance. We are very appreciative of the care with which the editors of the Columbia Journal of Transnational Law have prepared this Article for publication. We draw on collaborative ideas generated at NYU School of Law's Guarini Global Law & Tech initiative, where we teach and research Global Data Law with Benedict Kingsbury: www.guariniglobal.org/global-data-law [https://perma.cc/9RPK-8BAT]. We thank our students for critical reflections and thought-provoking reactions.

** Angelina Fisher is Adjunct Professor of Law and Director for Policy and Practice of Guarini Global Law & Tech at New York University School of Law. Email: angelina.fisher@nyu.edu.

*** Thomas Streinz is Adjunct Professor of Law and Executive Director of Guarini Global Law & Tech at New York University School of Law. Email: thomas.streinz@law.nyu.edu.