In 2014, Jennifer Lyn Morone decided to protect her data in the only way she could as an individual: She incorporated herself. Jennifer Lyn Morone Inc. operates as a self-contained data processing business of Morone, offering “a new business model that is designed to determine the value of an individual relative to society and to the data he or she creates.” The project started as an exploration of market alternatives in response to the lack of federal data protections in the United States, a topic that has drawn renewed interest since the Supreme Court overturned Roe v. Wade.

Our technological landscape tracks more than many realize, as Shoshana Zuboff describes in stunning detail across every page of The Age of Surveillance Capitalism: “Real-world activity is continuously rendered from phones, cars, streets, homes, shops, bodies, trees, buildings, airports, and cities back to the digital realm, where it finds new life as data ready for transformation into predictions.” Data capture’s association with pregnancy specifically has a strange media history. Back in 2012, Target faced a PR scandal when certain purchases associated with a woman’s browsing profile led the company to send her pregnancy-related coupons, outing her condition to her family. Digital trails feed predictive algorithms that get used as evidence, even though the algorithms themselves remain black boxes because they constitute trade secrets for the corporations behind them.

Data brokers capture and sell location, health, and personal data that police and others use to harass, misinform, and criminalize pregnant women, among others—and, already, the Border Patrol, the FBI, the IRS, and the Secret Service have contracts with data brokers, an alternative to the time-consuming effort of pursuing legal warrants. Anti-abortion groups have partnered with fertility health apps to identify users whose devices reveal their geolocation near a reproductive care clinic. The groups then try to direct advertisements and misinformation at them as they sit in a waiting room browsing online. Information entered into self-reporting reproductive health apps are not protected under HIPAA, nor is travel support provided by companies for abortion care, unless managed by a health insurance company.

Online searches are just some of the data extracted by law enforcement with the rise of digital forensics. Latice Fisher in Mississippi was arrested, tried, and jailed for a miscarriage because she had searched online for abortion information; the prosecutor presented that as evidence she had committed foeticide. In July 2022, criminal charges for a self-induced abortion were brought against 17-year-old Clarice Burgess based on a warrant to search her Facebook messages where she had spoken with her mother about her condition. Overall, anyone using apps or websites should be wary. (Health and Human Services has a data sheet for consumers on better understanding the public nature of information put into apps.)

Individuals can produce data but not own it or protect it, leading to wide-ranging privacy concerns. Political scientists, economists, computer scientists, and legal scholars, among others, have argued in favor of interpreting personal data as property. They argue that the rise of data analytics reinforces how data is an “asset created, manufactured, processed, stored, transferred, licensed, sold, and stolen,” and they dispute the argument that data’s lack of material substance impacts its actual and abstract relation to each person. Alongside this scholarly debate, a slew of companies arose to help people profit on their personal data, naturalizing this notion of property. The data exchange 360ofMe aims to centralize and contextualize personal information to help users cultivate greater self-knowledge as well as target the sale of such information. The CitizenMe app provides users with opportunities to gain rewards from businesses and charities who need data. Digi.me helps users aggregate personal data to share it knowingly with responsible businesses. BitClave uses blockchain technology to secure personal data, manage access, and enable sales opportunities.

The “data as property” argument leans into the market in order to alter the rights and regulations affecting the tech companies that sweep data about those producing it. But does it work? Morone took the aspirations of these middle-men as an opportunity to investigate the potential of a free-market solution. The results were disappointing.

When tech companies sweep up personal data from our strolling and scrolling across various sites, they may not know how they will use the data, but they do recognize its inherent value once merged, analyzed, and packaged for sale to advertisers and others. Everything we are doing online, and all that is being tracked about us offline, is an economic opportunity for companies somewhere. The value? Well over $1.5 billion, because now we are all the Six Million Dollar Man.

Since corporations can claim trade secrets, Morone decided to resist pervasive data capture by incorporating herself, so that the company, JLM Inc., contains the intellectual property and activities of the human Morone. If a corporation can be a person, perhaps a person could be a corporation and so protect their data! The articles of incorporation enable Morone’s data to qualify as intellectual property and thus purport to offer protections from the data marketplace. The human Morone’s privacy is possible because it is the product and trade secret of the company, JLM Inc., which is incorporated in the state of Delaware. With its own Court of Chancery that hears cases involving corporate law, Delaware’s legal structure is favorable to business. The state also does not collect corporate taxes from those that do business outside the state or tax “intangible assets”—like data.

As a corporation, JLM Inc. can choose who knows what about Morone because JLM Inc. offers Morone’s information on the marketplace. As a person, Morone is nothing but a resource to be developed into a marketable good—whether by her own efforts or another’s. The CEO Peter Drucker wrote that “the purpose of a business is to create a customer,” and JLM Inc. protects Morone’s data from market exploitation by imagining that a customer exists. Among other products, JLM Inc. produced gift cards of health, finance, and personal information with a range of values based on degrees of disclosure about Morone. The cards provide directly what so many data brokers steal and use to defraud consumers.

As JLM Inc., Morone has an obligation to refuse the terms and agreements that permit apps and websites to share data with their parent tech companies, alongside third and fourth parties. She must protect the secret formula of who she is so that she can sell it, making it a challenge for her to participate in many of the interactive information streams common to the 21st century. She can’t use apps, websites with cookies, or most search engines. They track her and collect data about her. That data is the property of JLM Inc. and so she must not engage these services. The problem with maintaining the marketplace as the point of reference for data governance is how it reinforces exploitative practices that don’t have clear, long-term safeguards for participants. Morone’s experience shows that the corporation doesn’t provide a solution to the extractive practices of these apps, platforms, and sites for a human who wants to live, work, or socialize today.

Hans Moravec, a robotics instructor at Carnegie Mellon, once proposed that “human identity is essentially an informational pattern rather than an embodied enaction.” That means our data is who we are, our bodies hapless matter making information happen, but numerous philosophy and science scholars—including Hubert L. Dreyfus, Katherine N. Hayles, and Rosi Braidotti—dispute this claim. Instead, they argue that mind and body cannot be separated from one another, and such a notion has detrimental social effects. We are more than quantifiable data, no matter how expansive that set might become.

Many artists have tried to raise awareness of data capitalism: Trevor Paglen’s ImageNet Roulette focused on the political valences of tags in data sets; John Gerrard’s Farm (Council Bluffs Iowa) related the data processed in enormous data centers with the livestock of industrial farming; many of the artists in the Albright Knox’s 2021 exhibition Difference Machines revealed how data sets and their computational infrastructures reproduce sociopolitical marginalization. All these artists emphasize the insidious identification and positioning that data delivers about our bodies to state actors.

Morone started this project in 2014, observing and participating in global conversations about how to mitigate the abuse of individual data within a transnational market fueled by it. In 2018, the European Union established the General Data Protection Regulation (GDPR), which  aims to give control of personal data back to individuals and help them opt out of marketing, but Morone explains that “companies can still change what kind of ‘necessary cookies’ the visitor needs to accept and what kind of data they need to collect for ‘essential functionality.’” Disappointed by political grandstanding and having shown the failures in the capitalist model she adopted, Morone became a founding member of the Data Union, hoping that a collective approach to data would be more productive. Unfortunately, she found most data unions and co-ops adopted “the same framework of capitalism and its business models that sustain it. Often these collectives are merely campaigns seeking donations or asking people to join and commit their data—but they are run like any other business.”

These investigations into data resistance movements led Morone to become a CEO of the foundation RadicalXChange in 2019. As the organization increasingly committed to technological tools as social solutions, she withdrew from active participation. The experience of JLM Inc. had already indicated that neither business nor technology were potent solutions for social ills. They offer merely “the illusion of control.”

As the scholar Martine Syms wrote: “Capitalism would lead us to believe that buying and selling is the most important activity of our lives.” This avoids a more serious conversation about what it means to market everything about ourselves. Instead of avoidance, we need a broader social imaginary as a means to counteract a current lack of “political imagination (in terms of the articulation of alternatives) and a closure of the economic imaginary.”

Claiming individual data as property or individual labor metabolizes our activities as economic products in a competitive marketplace, which reproduces the alienation that disables cooperative resistance. Human persons cannot protect their data as corporate persons do. Morone’s project makes that clear. Despite the Supreme Court’s 2010 claim that humans and corporations deserve the same rights, the two self-evidently don’t have the same powers. Data protections are the front line for health care, but they are also rendered across many other civil contexts, and isolating states and individuals to solve this problem disarms the very purpose of federal association and joint pursuit.

There is a place for us in the change we seek, but we need access to the corridors of legislative and judicial power and not simply market alternatives. Recently, the artist duo Operator made explicit the hypocrisy in barricading the Supreme Court from the people it serves in Still Contemplating Justice. Their site-specific installation for the web-based exhibition Unprotected at Epoch Gallery layers text across the steps of the virtual Supreme Court: “Trespassers of these steps will be punished. Trespassers of bodily integrity will be inside making decisions.” The exhibition presents works by nine artists identifying as women, producing a collaborative effort in which even the works are not sold individually but as a whole, exemplifying the solidarity that is necessary for civil rights movements.

Operator’s title riffs on The Contemplation of Justice (1932-4), a female figure positioned to the left of the Supreme Court steps, whom James Earle Fraser, the sculptor, described as “a realistic conception of what I consider a heroic type of person.” The statute’s eyes are closed, and she holds a blindfolded Justice figure, but the time has come for all to open their eyes to the injustice of data markets. Personal data is deeply tied to the “bodily integrity” identified by Operator, and companies trespass when they collect and store it.

Around the world, 107 nations already have data protection laws. The Information Transparency & Personal Data Control Act introduced to Congress in 2021 was referred to the Subcommittee on Consumer Protection and Commerce, where it remains, while 45 percent believe that the government is responsible for protecting their data. Nearly half of the American population has experienced a breach of their personal information, and now the FTC is looking for ways to regulate data market abuses. Data privacy protection may seem a dull fight, but it applies to issues ranging from the highly politicized abortion rights battle to religious freedoms, from credit limits to job opportunities. Data is a civil rights issue. As Morone puts it:“When those who have the power have too much to gain from the status quo, it’s very hard to change direction. I still believe that we can build a better way for us all, but we need to have a hard look at how capitalism features into that and what models, methods, and goals that we carry over ultimately perpetuate the vicious cycle.”