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.
Published in Columbia Journal of Transnational Law, Volume 60, Issue 3 (2022), pp. 829-956. The paper was initially written as a background paper for the World Development Report 2021: Data for Better Lives. It draws on ideas developed in Guarini Global Law & Tech’s Global Data Law project.
