Jaafar Noor has posted The Fourth Fictitious Commodity: Data Brokers, the Consumer Category, and the Commodification of Personhood in American Privacy Law on SSRN. Here is the abstract:
This paper argues that American privacy law’s reliance on the legal category “consumer” is not a regulatory gap but the operative legal mechanism by which lived experience is constituted as a fictitious commodity. Drawing on Karl Polanyi’s analysis of fictitious commodities in The Great Transformation, the paper theorizes personhood as the fourth fictitious commodity of late capitalism, after land, labor, and money. The data broker industry, estimated at $139 billion in North America and $278 billion globally, operates as the primary market for this commodity, collecting, aggregating, and selling behavioral, biometric, locational, reproductive, genomic, and emotional data. Because American privacy law addresses individuals only as “consumers” in specific market contexts, and contains no legal category of “the person” as a bearer of dignity rights against data extraction, it constitutes personhood as raw material for commercial appropriation. Three case studies demonstrate this mechanism in operation: the 23andMe bankruptcy, in which genetic data was treated as a transferable corporate asset; the Consumer Financial Protection Bureau’s withdrawn FCRA rule, which revealed the structural impossibility of stretching consumer protection to reach personhood claims; and the Federal Trade Commission’s enforcement actions against Mobilewalla and Gravy Analytics for trading in geofenced location data from places of worship, medical facilities, and domestic violence shelters. The paper synthesizes dignitarian and relational theories of data governance, showing they converge on the same reform target, and proposes a civil rights model for “informational personhood” that would create a legal category of the person distinct from the consumer.
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