The Structural Law of Data

Bridget A. Fahey

Professor of Law, University of Chicago Law School.

This Article has benefited from workshops at Harvard Law School, Northwestern Pritzker School of Law, the University of Chicago Law School, the University of Virginia School of Law, and Yale Law School, in addition to helpful comments from, and conversations with, Ian Ayres, Will Baude, Curt Bradley, Danielle Citron, Alex Hemmer, Aziz Huq, Alison LaCroix, David Strauss, David Weisbach, and Taisu Zhang. We finally thank the Neubauer Collegium and the University of Chicago Data Science Institute for their generous financial support.

Raul Castro Fernandez

Assistant Professor of Computer Science, University of Chicago.

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The central concern of structural constitutional law is the organization of governmental power, but power comes in many forms. This Article is about how the law of structure regulates decision-making about, and popular control over, an increasingly potent form of power: the power government obtains from data. The government has always relied on information to meet its objectives, but the digitization of information over the last half century has yielded a distinctive form of governmental power—one that is liquid, transferable, minable, dynamic, and vital to virtually all governmental activity today.

But despite the significant literature on private-sector “data governance,” public law scholarship about data has focused centrally on privacy rights and far less on the structural law of data—and, in particular, the forms of data governance our constitutional democracy requires as data rises in importance as a form of governmental power.

This Article develops an original account of data’s structural law—the processes, institutional arrangements, transparency rules, and control mechanisms that, we argue, create distinctive structural dynamics for data’s acquisition and appropriation to public projects. Doing so requires us to reconsider how law treats the category of power to which data belongs. Data is what we call an instrument of power—the means (money, land, arms, and the like) that the government uses to accomplish its many ends. The Constitution, we argue, facilitates popular control over material forms of power like data through specific and distinctive strategies, ranging from defaults to accounting mechanisms. Assessing data’s structural ecosystem against that backdrop allows us to both map the structural law of data and provide an initial diagnosis of its deficits.

Drawing on our respective fields—law and computer science—we conclude by suggesting legal and technical pathways to asserting greater procedural, institutional, and popular control over the government’s data. Indeed, we argue that data has distinctive structural possibilities because of the capacity to both channel and constrain data through technical design.

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