Money talks: how digital money & speech challenge existing legal frameworks

Authored by Elizabeth M. Renieris — December 29, 2018

Photo by abigail low on Unsplash

Money and speech have traditionally faced very different legal frameworks with very different (and often oppositional) objectives. Financial regulations are generally designed to curtail and control, while speech laws are generally meant to protect and promote the freedom of speech and expression. Some of this is driven by the inherently different functions of money and speech — where the former is designed to be alienable and transferable (i.e. a medium of exchange), speech is inherently personal and inalienable (i.e. a medium of expression).¹ But these legal swim lanes are growing harder to maintain as everything converges in the form of data.

Money is increasingly expressed in digital form as data. We see this with individual businesses and even entire localities foregoing hard fiat currency to go “cashless” (see, e.g., controversial efforts in Australia, Sweden, and Washington, D.C.), the explosion of fintechs, and a growing number of platforms for mobile and digital payments. We see this even more markedly in the emergence of programmable money in the form of cryptocurrencies and cryptographic tokens, combined with the digital record-keeping of value through blockchains and distributed ledger technologies (DLT).

At the same time, speech is literally being digitized (as there are more of us doing more online) but also human behavior itself is increasingly being turned into data. We now leave a detailed digital footprint not just when we “surf the Web” but also through each purchase we make with our credit and debit cards (or Apple Pay), through Bluetooth- and GPS-enabled smart phones and smart devices, and through retail beacons, surveillance cameras, and other devices that track us in the “real world.” Every second of our lives is becoming a data point — and mostly for parties other than ourselves (see Brett Frischmann and Evan Selinger’s take on this).

All digital things — whether money as digital currency, credentials such as a digital passport, or works of authorship — are relatively indistinguishable when expressed as data, each thing consisting of bits and bytes made up of binary digits (i.e. 0s and 1s). But money and speech, when expressed as data, are qualitatively different from their non-digital versions. This has to do with the very nature of data. Merriam-Webster defines “data” as “information in digital form that can be transmitted or processed.” The word “data” itself is derived from the Latin for datum meaning “that is given” and the past participle of the verb “do,” meaning, “to give.” Thus, data conveys liquidity and transferability.

Once digitized, data about us (i.e. personal data) becomes “money-like” and takes on a transferable or transactional quality. This is why our personal data is frequently described as a form of money or commodity (e.g. “personal data is the new oil” or “the new currency”), or a form of “property” capable of being owned and freely traded (see more on the problem with that approach here). This “propertization” enables what Shoshana Zuboff calls “surveillance capitalism” or the commercial exploitation of our human experience itself. It loses sight of the inherent expressive qualities of data and the need to protect the speech rights that attach to our freedom of expression in the digital realm.

New and emerging regulations like the General Data Protection Regulation (GDPR) and draft e-Privacy Regulation (ePR) in Europe, and domestic laws like the California Consumer Privacy Act (CCPA), aim for a rights-based approach to the data-driven economy. But they fail to appreciate the impact on fundamental freedoms as everything becomes data subject to “propertization” and commercial exploitation. These existing legal frameworks fall short because they fail to address the underlying convergence of money and speech as data, and the unique challenges posed by this phenomenon.²

Addressing this convergence is even more urgent in light of emerging technologies with potentially significant implications for the freedom of speech and expression (though few technologists seem concerned about this aspect of the fourth industrial revolution). By losing sight of the expressive qualities of data, we may end up curtailing our own fundamental rights. For example, in creating cashless societies do we inadvertently impose a restraint on our freedom of speech and expression? Or, conversely, compel speech where we can no longer remain anonymous? By creating a permanent and transparent digital record of our activities, do “censorship-resistant” technologies like blockchain or DLT that aim to prevent the censoring of transactions actually have a chilling effect on our speech and expression, actually encouraging self-censorship?

We have limited guidance in the law. The commercial speech doctrine and campaign finance-related jurisprudence like Citizens United³ may provide limited insights. But, in the realm of campaign finance, it may be easier to separate the “money” element (i.e. the campaign contribution) from the “speech” element (i.e. the political viewpoint). As data, digital “things” have both consumptive “money-like” properties and expressive “speech-like qualities,” and typically fall along a spectrum of their expressive vs. consumptive value (and that ratio is likely dynamic and subject to change). Rather than forming distinct ingredients as they would in a salad, the result is a kind of digital soup where lines are much harder to draw.⁴

I suspect 2019 will be the year that our legal swim lanes break down. As money and speech converge, we will need to reevaluate our approach to core legal frameworks and regulatory objectives to answer some critical questions, including: how will the law adapt to regulate data and digital things that have both consumptive and expressive value? What does this mean for the future of financial regulation and speech regulation? And, what guiding principles can we use to design solutions to the challenges posed by this convergence?

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[1] For an example of the risks of treating certain speech rights as alienable, transferrable, or “propertizable” (i.e. capable of being treated as property), see Rothman, Jennifer E., The Inalienable Right of Publicity (November 12, 2012). 101 Georgetown Law Journal 185 (2012); Loyola-LA Legal Studies Paper №2012–46. Available at SSRN: https://ssrn.com/abstract=2174646.

[2] This convergence is perhaps nowhere more apparent than in the transition from finance capitalism to “data capitalism” best described by Viktor Mayer-Schönberger and Thomas Ramge in Reinventing Capitalism.

[3] See Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

[4] For example, we see this murkiness in the attempt to regulate cryptographic tokens and other digital assets that simultaneously have “money-like” transactional properties as well as other functions. The convergence of all things as data is at the heart of this challenge.