Who owns personal data?
Personal data “ownership” is incompatible with a rights-based approach to personal data protection.
The commercial value of personal data has prompted arguments that individuals should be allowed to commercialize their own data.1 Granting individuals ownership rights over personal data is sometimes proposed to address data inequalities and to determine how such data can be used and by whom.2 Yet “ownership” neither addresses these inequalities nor empowers individuals to control the use of data. Personal data “ownership” makes sense only if personal data are considered an “asset” with associated property rights.3 If personal data are property, they can be used as collateral and for commercial exchange, with the potential implication that individuals could even trade away the data that contain their digital identity.
Some scholars suggest that concepts of property rights should apply to personal data.4 Others suggest that market-based solutions should be used to protect data,5 called the “personal data economy.”6 The economic literature is mixed on whether data ownership rights could solve market failures or improve social outcomes.7 Some suggest that the optimal distribution of ownership rights would depend on factors including the investment required to create the data8 and the ability to monetize data.9 A regime based on property rights would likely increase the transaction costs involved in data sharing, by requiring negotiation of the terms of sale and use.
Ascribing data ownership rights to personal data also poses legal challenges. First, personal data often involve overlapping interests of different parties.10 These interests are present in the collection, creation, and use of the data.11 If ownership were allocated to the “party with the clearest interest or who could make the most value out of it,”12 it would be practically difficult to identify the party or parties meeting this definition.13 It is also unclear how to compensate interested third parties if their rights are breached through downstream data uses.14 Creating a data ownership right would require elaborating “necessary user” rights and rules to accommodate the public interest needs of such data,15 such as those raised in the COVID-19 pandemic response.
Second, “owning” personal data might incentivize poor and more vulnerable people to sell their personal data, exacerbating existing inequities. Under a rights-based approach to personal data protection, individuals have fundamental rights regarding their data. Perhaps ironically, these rights—more than “ownership”—give individuals control over their data, enabling them to negotiate the use of these data.16 These immutable rights—like due process under law—cannot be bargained away like chattel. Even current case law does not support ownership rights over personal data.
- Start-ups providing personal data management services to internet users have appeared, ranging from companies that compensate users for their personal information to those that require users to pay fees to avoid the use of their personal information (Elvy 2017).
- This spotlight deals only with issues concerning “ownership.” Other theories include treating personal data as labor (see Posner and Weyl 2018, who posit that the individual’s role in creating the data is recognized and compensated as labor) or allowing personal data to be shared through licensing arrangements (see Savona 2019, who suggests that data could be recognized as a licensable asset owned by the individual who generates it); see also Fisher and Streinz, 2021). A related aspect of this debate revolves around expanding the types of data available to creditors and other decision makers beyond traditional data, such as payments on loans. These nontraditional types of data could include utility payments, cash flow, and social media data. The reliability of such data and the ability to access and dispute the information are important issues. The analytics applied to such data may also fall in the nonpersonal category. Ownership of nonpersonal data, by contrast, is a more straightforward issue of intellectual property rights, which is addressed in chapter 6.
- Castells (2010); Zuboff (2019).
- Laudon (1996); Samuelson (2000).
- See, for example, Carrascal et al. (2013) and Kerber (2016).
- See, for example, Haupt (2016).
- Duch-Brown, Martens, and Mueller-Langer (2017).
- Tirole (2017); Zech (2016).
- Dosis and Sand-Zantman (2019).
- Scassa (2017).
- Scassa (2017).
- Wiebe (2016, 880).
- See, for example, Farkas (2017).
- Viljoen (2020)
- Scassa (2017).
- Scassa (2017).
- Carrascal, Juan Pablo, Christopher Riederer, Vijay Erramilli, Mauro Cherubini, and Rodrigo de Oliveira. 2013. “Your Browsing Behavior for a Big Mac: Economics of Personal Information Online.” In WWW ’13: Proceedings of the 22nd International Conference on World Wide Web, 189–200. New York: Association for Computing Machinery.
- Castells, Manuel. 2010. The Information Age: Economy, Society, and Culture. Vol 1: The Rise of the Network Society, 2d ed. Malden, MA: Wiley-Blackwell.
- Dosis, Anastasios, and Wilfried Sand-Zantman. 2019. “The Ownership of Data.” TSE Working Paper 19-1025, Toulouse School of Economics, University of Toulouse, Toulouse, France, July 2019.
- Duch-Brown, Nestor, Bertin Martens, and Frank Mueller-Langer. 2017. “The Economics of Ownership, Access, and Trade in Digital Data.” JRC Digital Economy Working Paper 2017–01, Joint Research Center, European Commission, Seville, Spain.
- Elvy, Stacy-Ann. 2017. “Paying for Privacy and the Personal Data Economy.” Colombia Law Review 117 (6): 1369–459.
- Farkas, Thomas J. 2017. “Data Created by the Internet of Things: The New Gold without Ownership?” Revista la Propiedad Inmaterial 23 (June): 5–17.
- Fisher, Angelina, and Thomas Streinz. 2021. “Confronting Data Inequality.” WDR 2021 background paper, World Bank, Washington, DC.
- Haupt, Michael. 2016. “Introducing Personal Data Exchanges and the Personal Data Economy.” #ExitTheSystem (blog), December 7, 2016.
- Kerber, Wolfgang. 2016. “Digital Markets, Data, and Privacy: Competition Law, Consumer Law, and Data Protection.” MACIE Paper 2016/3, Marburg Centre for Institutional Economics, School of Business and Economics, Philipps-University Marburg, Marburg, Germany.
- Laudon, Kenneth C. 1996. “Markets and Privacy.” Communications of the ACM 39 (9): 92–104.
- Posner, Eric A., and E. Glen Weyl. 2018. Radical Markets: Uprooting Capitalism and Democracy for a Just Society. Princeton, NJ: Princeton University Press.
- Samuelson, Pamela. 2000. “Privacy as Intellectual Property?” Stanford Law Review 52 (5): 1125–73.
- Savona, Maria. 2019. “The Value of Data: Towards a Framework to Redistribute It.” SPRU Working Paper SWPS 2019-21, Science Policy Research Unit, Business School, University of Sussex, Brighton, UK, October 2019.
- Scassa, Teresa. 2017. “Sharing Data in the Platform Economy: A Public Interest Argument for Access to Platform Data.” UBC Law Review 54 (4): 1017–71.
- Tirole, Jean. 2017. Economics for the Common Good. Princeton,NJ: Princeton University Press.
- Viljoen, Salomé. 2020. “Data as Property.” Phenomenal World, October 16, 2020.
- Wiebe, Andreas. 2016. “Protection of Industrial Data: A New Property Right for the Digital Economy?” GRUR Int 10/2016 (October): 877–83.
- Zech, Herbert. 2016. “Data as a Tradeable Commodity.” In European Contract Law and the Digital Single Market: The Implications of the Digital Revolution, edited by Alberto De Franceschi, 51–80. Cambridge, UK: Intersentia.
- Zuboff, Shoshana. 2019. The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. New York: PublicAffairs.