Who should control data? The question is increasingly central to policy debates in Washington, Brussels, and Silicon Valley. It’s being asked in antitrust lawsuits, AI regulation proposals, and sweeping data governance laws. But there’s a problem: The question is built on a faulty understanding of what information is—and what it takes to make it useful.
Information isn’t a commodity that exists for the taking and to be passed around, such as oil. As my AEI colleague Jim Harper explains, “information is the content of any signal that conveys something about the world.” He is right, but it is important to add that information, as we know it and talk about it, does not exist outside of people working to express, convey, receive, and capture it.
And the work doesn’t end there. It is but a building block in creating understanding, by which I mean the comprehension of knowledge, possibilities, and probabilities, and how they might connect. Said differently, to be valuable, information must be generated, saved, and refreshed, as well as comprehended and connected at the right time and in the right place and with the right insights. Treating information as a static, endowed asset that governments can redistribute, as the US Department of Justice and the European Union are trying to do, overlooks this work. And when policymakers ignore the human and technical labor behind information, they make costly mistakes.
Take the DOJ’s recent antitrust case against Google Search. The DOJ claimed, and the court largely agreed, that Google’s success was a threat to competition and innovation. The DOJ’s proposed remedy involves transferring Google’s expertise and data resources to rivals. But this is backwards looking, having missed a crucial shift: AI is transforming how people seek and receive information. Google Search—once a tool for finding websites—is now being replaced by AI-generated understanding. A study released this year found that people shown AI summaries in search results clicked on traditional links only about half as often as before. The era of search as we knew it is ending. In its place, AI systems are becoming our interpreters, teachers, and decision-making assistants. The DOJ’s attempts to open up Google’s search infrastructure are not just misdirected—they’re already obsolete.
The confusion runs deeper than search. Many policymakers use the misnomer—your information—to refer to information about you, implying that you own information about you that others hold. But information doesn’t spring into existence fully formed. It must be signaled—deliberately or not—and then sensed, recorded, and interpreted. That takes effort and investment, often by private companies. And the difference between your information and general information is nothing more than a pointer that associates the information with you. When regulators try to treat such information as your property, they’re simply expropriating others’ work. When governments treat information this way, they reduce the incentives to create and enhance information in the future.
Harper also rightly explains that issues of property rights in data should evolve through courts and practice, not legislation. This approach, when done correctly, evolves as controversies prompt courts to discover how people behave and think with respect to information rights, responsibilities, and effort. Absent this thoughtful evolution, governments will create policies based on political preferences and intellectual arguments that are often too disconnected from what works in practice.
Consider the EU’s data strategy. Its laws mandate that companies hand over data—including information they’ve invested heavily to collect and use—to customers, competitors, and the state. Recipients of the largess believe this sounds fair. But what it really means is that companies that did the work of gathering and interpreting information now must give that work away, while competitors who didn’t invest can free ride. The result? Less innovation, less competition, and less progress.
The question governments should be asking isn’t “Who should own the information?” It’s “Who does the work to create value—and how can we encourage more of that work?” In today’s economy, where value comes from understanding, not just to access information that someone else created, public policy needs to reward that creation—not penalize it.
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