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VOICES: Why what you flush, isn’t yours

Is it government overreach when private life offers public data?


By Michael Madison

If your household plumbing is connected to a public sewer system, then once you flush, the water and its contents pass quickly from your dominion to someone else’s control.

So what? The answer, surprisingly, is that a close look at contemporary wastewater treatment shows us something critical to Postindustrial Cities: how our governance systems aren’t keeping up with modern technology.

Scientists have asked “who owns your poop?” out of ethical fears. They conclude: Get informed consent. Don’t exploit people.
All true. But those principles may miss a big community forest by focusing on individual trees. What many people learned during the COVID-19 pandemic is that community levels of infectious disease can be monitored by studying wastewater. Starting in 2020 wastewater analysis expanded dramatically all over the world as governments and public health experts studied our pee and poop. Those systems aren’t going away. The products of our most intimate, private activities have been turned into digital data, shared widely among public utilities, giant private companies, public officials, and scientific experts.

My law professor colleague Teresa Scassa, together with two co-authors, calls this an example of the “datafication” of civic life.

Is everyone OK with this? Did everyone agree? Is it right or fair that this is going on?

The last question is the most important one. Right now, we’re talking about analyzing wastewater in its “pooled” form. What was a solo item is now part of a combined resource, a valuable input into tools and diagnostics used for the common good. It’s pretty easy to judge that hypothetical ownership of “your” poop should give way to the superior public interest in community health. There is lots of collective benefit and little to no harm to anyone individually.

Is everyone OK with this? Did everyone agree? Is it right or fair that this is going on?

What if technology gets smarter? It’s not difficult to imagine wastewater analysis moving upstream, literally, and broadening in scope to test for things in addition to the COVID virus. What if we’re not doing wastewater analysis at the main plant operated by ALCOSAN, Pittsburgh’s wastewater treatment arm, but we’re doing it at the point where the drainpipe from your house, apartment, or dorm room connects to the sewer system?

The potential for overreach into personal or private affairs seems striking. The public benefit of upstream testing isn’t so clear cut; the potential for private harm goes way up. What’s the right response when ALCOSAN or its technical partners are asked to share home-specific data about, say, drug use, with local law enforcement?

On the one hand, legally speaking, in that hypothetical ALCOSAN might be on safe ground.

In the Kyllo case from 2001, the U.S. Supreme Court ruled that law enforcement may violate the Fourth Amendment when it uses thermal imaging equipment to see inside a person’s home. But a home-specific wastewater filter doesn’t reach inside the home like a heat sensor seems to. And legal experts generally agree that homeowners have no privacy interests in the contents of their garbage, once the garbage has been put outside for collection.

On the other hand, there is the powerful intuition that something is “off” in all of this, because modern technologies of surveillance and data collection have crept – again – into territories that we may feel should be off-limits not only to the police but also to corporations, friends, neighbors – even spouses, parents, and children. The actual substance itself doesn’t matter. What matters is the story about you that can be painted by data analysis. As with so much of modern life, the intangible information in the poop is the pivot point around which key public policy and private policy choices turn.


This foray into wastewater is a starting point for thinking about related intrusions into our private worlds by Big Tech, often in partnership with governments, law enforcement, universities, and others – even philanthropies.

In a hundred different ways, both public and private institutions in and around Pittsburgh are collaborating to collect data about you, your families, and your friends on sidewalks, on roadways, at traffic lights, using both public services (schools, housing, and transportation most of all) and private ones (doorbell cameras). Pittsburgh today is like a public sector Santa Claus. It knows when you’ve been naughty, and it knows when you’ve been nice.

Nervous, much?

Don’t worry; not all of those intrusions are bad things, either for individuals or for communities.

But who’s to say, and how are we to know? Most of this activity is happening off-stage, where you barely notice it, managed by people you’ve never heard of. If you wonder whether you gave the OK, the answer either is you weren’t asked (maybe you were in a public place anyway), or you were – and somewhere along the line you clicked “I Agree” or “OK,” just like you do all the time when you’re surfing the Web and some site wants to know if it can put cookies on your computer.

Doing that is so trivial to most people that it may seem easy to solve datafication problems by making the “I Agree” button a universal practice. What if your toilet came equipped with a digital “flush click,” so that every time you flipped the handle, you sent a message to ALCOSAN “consenting” to data about you being extracted?

Don’t worry; not all of those intrusions are bad things, either for individuals or for communities.

That’s where we seem to be headed. And that’s ridiculous. It’s meaningless formalism, for starters, and what’s much worse, doing that discards the whole idea of a shared commitment to a community. The possibility that we might care about our shared humanity goes down that drain.

Instead, the better route is to ask whether you participate meaningfully in a community-grounded judgment about the wisdom of collecting and using data about you. Do you do that now? Of course not. Could we imagine doing that? Yes.

What holds us back from following through on that idea is not simply the notion that technology always outpaces the speed of regulation. That’s a 20th century worry.

What we have to confront in the postindustrial 21st century is the fact that our governance institutions – what we currently idealize as “democracy” – are out of date. Datafication is taking the tools of meaningful oversight of the public sector, of elected officials, and well-trained experts, out of the community’s hands. The new era calls for different forms of community engagement, participation, and accountability than the ones that we invented 100 years ago.

Today, we’re using old-fashioned governance to try to deal with contemporary social, technology, and economic problems. Looking forward, we need to find new ways to meaningfully integrate community interests with political leadership and expertise of multiple sorts.

I have a new book about this: “Governing Smart Cities as Knowledge Commons.” I love to talk about the book and my research. But the key message is a simple one: “Trust us” won’t cut it any longer.

Michael Madison is a professor of law and John E. Murray Faculty Scholar at the University of Pittsburgh School of Law, and a senior scholar with the University of Pittsburgh Institute for Cyber Law, Policy, and Security. He writes about institutions and governance and is a co-founder of the emerging research discipline known as “knowledge commons.” Before becoming a law professor, he practiced law in San Francisco and Silicon Valley. Madison received his J.D. from Stanford University and his bachelor’s degree from Yale University. He is a regular contributor to Postindustrial. Reach him through his website.

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