S06E10: How Colonial Law Shaped Modern Data Extraction

The Mapping the Doctrine of Discovery project asks a blunt question: what if today’s digital life still runs on the same colonial logic that once justified taking land? A Taino and Mennonite scholar of AI ethics traces a line from the Doctrine of Discovery and Terra Nullius to “Data Nullius,” where human attention, behavior, and engagement are treated like ownerless resources. The argument starts with terms of service and contract law: if participation requires clicking “agree” on conditions you cannot negotiate, agency is already structurally constrained. That coercion is not a glitch in platform capitalism; it is a durable pattern of extraction.

To make that pattern visible, the talk pairs genealogy with analogy. Genealogically, concepts like res nullius travel from Roman property doctrine through papal bulls and into modern legal frameworks. Structurally, both land seizure and data extraction work by erasing existing relationships so a new owner can appear. Drawing on Édouard Glissant, “comprehension” is framed as a kind of grasping, a way of knowing that reduces the other into legible, countable objects. In the colonial setting, non-Christian peoples had to be rendered transparent to be “discovered” and acted upon. In the AI era, lived experience is decomposed into metadata, behavioral traces, and quantifiable signals so algorithmic systems can capture and monetize it.

The history of data helps explain how “things given” became “things taken.” Early modern data practices grow through medical counting, then accelerate in the nineteenth century with statistics as state knowledge of populations, resources, taxes, and military capacity. Think of Quetelet’s “average man,” which turns many lives into one statistical regularity, and Francis Galton’s obsession with deviation, ranking, and measurement, laying groundwork later used for eugenics and micro-targeting. World War II industrializes information processing, followed by the creation of the NSA and the normalization of electronic surveillance. Alongside this arc sits Indigenous resistance, including strategic refusals to be known and even early forms of “poisoning the data” during exploitative scientific projects.

Modern surveillance capitalism reaches its “attention economy” turning point when Google’s PageRank converts user behavior into continuous extraction and profit. Regulation arrives late and imperfectly: GDPR pushes consent, transparency, and the right to erasure, but it often frames data as individual property-like control. Long before that, First Nations in Canada develop the OCAP principles (Ownership, Control, Access, Possession), a foundation for Indigenous data sovereignty that treats information as collective life and community stewardship. The episode closes by confronting today’s data ownership debates in AI ethics and policy, especially around genomic data, privacy law, intellectual property, and terms-of-service contracts. A relational approach insists that data is not a free-floating asset but a responsibility, with accountability to the people and communities from which it emerges.

Guest

Jordan Loewen-Colón (PhD) is cofounder of the AI Alt Lab and adjunct assistant professor of AI Ethics and Policy at Queen’s University’s Smith School of Business. Helping mission-driven institutions make smarter AI decisions through independent advisory on vendor evaluation, governance risk, trust, and institutional fit. Our more active listeners might also recognize him as one of the podcast’s co-producers and our voiceover specialist.

Citation

Philip P. Arnold and Sandra Bigtree, “S06E10: How Colonial Law Shaped Modern Data Extraction” Mapping the Doctrine of Discovery (Podcast), 2026-05-04. https://podcast.doctrineofdiscovery.org/season6/episode-10/.

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