Property rights in personal data: Learning from the American discourse

Abstract

This contribution is an attempt to facilitate a meaningful European discussion on propertization of personal data by explaining the idea as it emerged in its 'motherjurisdiction', the United States. The piece starts with an overview of how the current US legal system addresses the data protection problem and whether, according to the US commentators, the law does it effectively. Furthermore, the contribution presents propertization of personal information as an alternative to the existing data protection regime and one of the ways to fill in the alleged gaps in the US data protection system. The article maps the US propertization debate. Pro-propertization arguments are considered from economic perspective as well as from the perspective of the limitations of the US legal and political system. In continuation it analyses proposals on how property rights in personal data would have to be regulated, if at all, in case the idea of propertization is accepted. The main points of criticism of propertization are also sketched. The article concludes with a brief summary of the US propertization discourse and, most importantly, with a list of the lessons Europeans can learn from their American counterparts engaging in the debate in the home jurisdiction. Among the mane messages is that the outcome of the debate depends on the definition of the problem propertization is called on to tackle, and that it is the substance of the actual rights with regard to personal data that matters, and not whether we label them as property rights or not.

The challenges of personal data markets and privacy

“…In the US and in Europe, it is now intensively discussed whether personal data could be seen as "property" (Schwartz 2004 ;; Purtova 2012 ;; Spiekermann and Novotny 2015 ). The OECD and scholars around the world have started to think about how personal information could be priced (OECD 2013 ;; Acquisti 2010; Acquisti , 2014; Spiekermann et al 2012 ).…”

Personal Information Markets and Privacy: A New Model to Solve the Controversy

“…The legitimization of data collection is probably the most important bridge between US American and European data protection frameworks [25]. Legitimization justifies the collection and use of PI.…”

“…Legal enabler: recognition of a property right to PI (for an elaborate discussion of this proposal, see [18][19]). …”

“…In contrast, critics contend that privacy protection generates social welfare [17]. Everyone acknowledges that people need control over the use of their PI [18][19]. But no consensus is reached yet on whether people should legally own their PI and get a property right [1], [19].…”

“…Many want to view privacy exclusively as a human rights issue because they are concerned that people could be 'propertized' [3], [20]. But giving peo-ple control over their PI has driven human-rights based privacy regulation so far [18]. As a result, only a few scholars have theorized about how PI markets could be organized with privacy [3], [19], [21][22].…”