We have always governed power by striking a bargain. When we let a few hands hold something everyone depends on, the water, the grid, the rail line, we have asked something of them in return... These companies have taken our human data and built their systems from us. I do not see yet what they have given back... These are the questions, and the answers are owed by us, not to us.

I think data is the fourth fictitious commodity. The market treats it as a product. The consequences fall on the people who produce it by being alive ... I disagree. Data is neither capital, nor a commodity. It is not something a corporation makes. It is something you make, by living ... The law currently divides what comes from a person into categories ... The categories were drawn by people who benefited from drawing them ... I watched part of the categorizing of data happen. Earlier in my career, many talented lawyers I knew flocked to the 'new' field of data privacy. My law partner, Charles, and I were doing something different ... The privacy field was not really about privacy. It was about compliance ... Privacy is what keeps the individual an individual at all ... The compliance industry did not protect that fence because the legislature did not ... A 'data subject' is what a person becomes when the framework gets through with them ... And this is what is legal and what is required. When I do data privacy work, this is what I do. This is what every lawyer does ... It was the orderly negotiation of how much of a person the corporation could take and still call itself compliant ... All of it is data. The immutable part and the lived part together are what a person is ... The fiction is in place. The category has been drawn. The framework has done its work. What it has not done is sever the thing the framework was built to take from the person it was taken from.

The people who sat down to write the German Basic Law had just lived through something the founders of the American republic had not. They had watched a modern, literate, and legally sophisticated state dismantle human dignity with bureaucratic precision, not despite the law, but through it. The Holocaust ran on the legal order. It was the machinery of the state, working as designed, and turned to the project of annihilating a people. Nothing in the framework existed that stopped it, because nothing required that.

That is what a legal order produces when nothing stands above the legislature. When the German Reichstag passed the Nuremberg Laws, they used those laws against Jewish citizens, taking their citizenship, their professions, their property, and their lives. The legal system did not break down. It did its work. What was missing was a constitutional floor of rights the legislature could not legislate away — a principle that said there were things the law could not do to a human being, no matter who passed it. That is the absence we are talking about.
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