02 November 2013

Privacy as property

Nadezhda Purtova's 'Illusion of Personal Data as No One's Property: Reframing the Data Protection Discourse' in Joseph A. Cannataci & JP Mifsud Bonnici (Eds) Online Privacy: are we consenting to our future? Explorations in current privacy issues (Rome: Edizioni Scientifiche Italiane) argues that
 the possibility to frame a European (and for that matter, any other) data protection regime without dealing with the issue of property rights in personal data is an illusion. The paper shows that - as long as personal data bears high economic value - the real question is not ‘if there should be property rights in personal data’, but ‘whose they should be’.
This paper offers a new perspective on the nature of personal data as a resource: personal data is a system resource comprising not merely individual pieces of information pertaining to identifiable individuals, but an entire ‘ecosystem’, comprising interconnected but separate elements: (a) people themselves whose existence by itself generates personal data, (b) electronic platforms designed to ‘capture’ people by offering them unique electronic services and harvesting data of their users at the same time; and (c) personal data not collected from people directly but inferred on the basis of personal data available earlier.
Considering personal data as a system resource helps demonstrate that the present level of development of Information technology and of markets of electronic services have made personal data a rivalrous resource. This conclusion has effectively refuted the non-rivalrousness premise -- one of the core grounds on which many of anti-propertization arguments are built. By harvesting personal data via electronic platforms it has become possible for the Information Industry actors to effectively exclude others - both individuals and competing fellow Information Industry actors - from access to personal data and enforce their property claims on this new resource.
The debate around property rights in personal data both in the European and American privacy discourse is much like a plot of a ghost novel – at the onset everybody talks about it, but few believe in it, until it is no longer possible to deny its presence. Proposals to introduce property rights in personal data have emerged in the United States as early as the 1970s (Westin, 1967), and have been subject of academic discussion – at times less intensive – ever since, with the European scholars joining the debate in the early 2000s. Roughly, one part of the ‘propertization’ camp reasoned that the law should acknowledge the de facto commodification of personal data that occurred as a result of a switch to behavioural marketing and made personal data ‘new oil’ of the modern economy; the other part considered propertization mainly as a means of giving back to the individual control over data pertaining to him (Janger, 2003). Some arguments have been made against propertization, a predominant anti-propertization argument being that informational privacy is a common good and propertization facilitating market exchange would not be able to secure it (e.g. Regan, 2002). In response, other scholars have offered property models consistent with and arguably enhancing informational privacy (Schwartz, 2004; Rule, 2007; Lessig, 2006, 1996; Janger, 2003, etc.).
Next to the Information Industry drawing their value from access to personal information (Finger, 2013) and claiming property rights in consumer profiles and databases (e.g. BBC, 2012), other business models have emerged claiming to help individuals – for a fee – to manage and reassert their ‘ownership of personal data.’ Personal data markets and property rights in personal data have become popular subjects of academic research. While before data protection and informational privacy conferences would have included academic papers on propertization only occasionally, in 2012-2013 in Europe alone the growing interest in the topic is signified by several large conferences and workshops dedicated solely or in a big part to the issues of data markets and economic value of personal data.
However, despite these developments, to the author’s best knowledge, no jurisdiction either in the US or Europe has adopted or comprehensively considered the option to introduce property rights in personal data. The notions of economic value and ownership of personal data have become routine in the realities of data processing practices and data protection and information systems scholarship. Paradoxically, the preparatory documents released on January 25, 2012 in connection with the announced EU data protection reform: the Proposal for a Regulation on the protection of the individuals with regard to the processing of personal data and free movement of such data and accompanying Commission’s reports, Communication and Impact Assessment, do not contain any considerations regarding property in personal data. Reportedly, member states have discussed the idea of propertization at some point but the discussion has stumbled over the unconventional nature of personal data as an object of property rights and has led to no conclusive results mentioned in the Reform documents.
The conclusion of this article is that one ought not delay or avoid resolving the issue of property in personal data in the context of the current data processing realities. Property rights in the personal data should be given to an individual.
This follows from the following theses: Maintaining that personal data is res nullus or nobody’s property and is in ‘public domain’ is an illusion not viable in the information-driven economy. Even more so, maintaining status quo where no ownership in personal data is formally assigned equals assigning ownership to the Information Industry and leaving an individual defenceless in the face of corporate power eroding his autonomy, privacy and right to informational self-determination.
A note has to be made at this point that the term ‘property rights’ as used in this paper is not attached to any one jurisdiction, but derives from studies in comparative European property law, to be understood as any interest in an object – tangible or intangible – that is directed against the entire world, i.e. has a so-called erga omnes effect. Alienability of such an interest is therefore not a necessary defining characteristic of property rights.
The argument proceeds as follows: Section 2 offers a new perspective on the personal data flow in light of the economic theory of formation of property rights, concluding that the existing data protection regime in Europe does not assign default entitlements in personal data clearly (Section 2.2) and thus has enabled the Information Industry to capture and effectuate property rights in personal data. The most significant parts of the property rights analysis offered are the mapping of the modern personal data flow and subsequent anatomy of personal data as a system resource (Section 2.3.2) and the part refuting the premise dominating the propertization of personal data debate – that personal data is not rivalrous (Section 2.3.3). Section 3 concludes with a discussion of implications of the new framework of analysis for the data protection discourse, and argues in favour of granting data subjects with property rights in their personal data.