Federal Communications Commission Chairman Tom Wheeler testifies before the House Judiciary Committee in 2015. Photo: Chip Somodevilla/Getty Images.

Common law principles, very old precedents that guide how disputed laws are interpreted, could serve as a foundation for crafting new policies to govern Big Tech, former FCC Chairman Tom Wheeler writes in a paper out Friday

Why it matters: Amid a wave of data privacy controversies, policymakers are looking at regulating how big tech companies collect and use consumer information. But the question of who owns consumer data is up for debate. A new common law principle, Wheeler argues, could be a potential solution for how data privacy laws are interpreted for the future. 

"For over the past six centuries, simple, direct and decipherable common law concepts have governed economic affairs. The transformation of those economic affairs from analog activities to digital activities has not transformed the responsibilities of those who harness the new digital technology to provide new services."
— Tom Wheeler, Senior Research Fellow, Harvard's Shorenstein Center on Media, Politics and Public Policy

The background: Wheeler says privacy rights of Americans have evolved on an ad hoc basis, and thus the foundation of who owns data has been neglected.

  • “If the oil buried beneath my land is my property, then why isn't the information buried deep in my life treated similarly?" he writes. 
  • This outlook is common in Europe, where regulators passed a sweeping privacy laws that gives consumers much more control of their personal data.

The details: Wheeler argues that holding companies accountable to certain responsibilities — such as "duty of care,” to consider how their data collection could harm personal privacy, and "duty to deal,” to prevent monopolistic actions — will keep in check invasive or anti-competitive behavior.

When it comes to government privacy protections, Wheeler says laws be based on three building blocks: transparency, control and responsible forethought. 

  • The "negligence" standard that has applied to previous industries should also apply to internet companies so they are required to take reasonable steps to mitigate the threats made possible by the services they've created.
  • When an entity controls access to a fundamental asset, it has an obligation to make that asset available — not for free, but as an asset that can benefit others.
  • This kind of government intervention that occurred in other industries, from railroads to textiles, is necessary to constrain the natural excesses of capitalism, he writes. But those industrial age standards must be revised to apply to the internet age.

Between the lines: Wheeler oversaw the adopting of now-defunct privacy and net neutrality rules on broadband providers. He refers to those rules as attempts to put in place common law principles that would establish expectations about companies' responsibilities to consumers. 

Bottom line: History could guide some solutions for newer data privacy issues. 

Go deeper

Updated 17 mins ago - Politics & Policy

Unrest in Philadelphia after fatal police shooting of Black man

Demonstrators rally on Tuesday near the location where Walter Wallace was killed by two police officers in Philadelphia, Pennsylvania. Photo: Mark Makela/Getty Images

The Pennsylvania National Guard was mobilized Tuesday during a tense second night of protests in Philadelphia over the fatal police shooting of Walter Wallace, a 27-year-old Black man.

Driving the news: Philadelphia Mayor Jim Kenney (D) and Police Commissioner Danielle Outlaw said in a joint statement Monday that police were launching a "full investigation" to answer questions that arose from video that captured part of the incident with police.

Updated 1 hour ago - Politics & Policy

Coronavirus dashboard

Illustration: Sarah Grillo/Axios

  1. Politics: Obama: Trump is "jealous of COVID's media coverage" Axios-Ipsos poll: Federal response has only gotten worse.
  2. Health: Hospitals face a crush — 13 states set single-day case records last week.
  3. Business: Winter threat spurs new surge of startup activity.
  4. Media: Pandemic causes TV providers to lose the most subscribers ever.
  5. States: Nearly two dozen Minnesota cases traced to three Trump campaign events.
  6. World: Putin mandates face masks.
3 hours ago - Sports

Los Angeles Dodgers win World Series

Mookie Betts slides home safely to give the Dodgers a 2-1 lead. Photo: Tom Pennington/Getty Images

The Los Angeles Dodgers won their seventh World Series in franchise history with a 3-1 Game 6 victory over the Tampa Bay Rays on Tuesday. Shortstop Corey Seager was named the series MVP.

The big picture: It's the Dodgers' first championship since 1988, though they've won the NL West division in eight straight seasons and reached the World Series three times in the last four years.