Why data ownership is the wrong approach to protecting privacy

Article by John B. Morris Jr. and Cameron F. Kerry: “It’s my data.” It’s an idea often expressed about information privacy.

Indeed, in congressional hearings last year, Mark Zuckerberg said multiple times that “people own all of their own content” on Facebook. A survey by Insights Network earlier this year found that 79% of consumers said they want compensation when their data is shared. Musician and tech entrepreneur will.i.am took to the website of The Economist to argue that payment for data is a way to “redress the balance” between individuals and “data monarchs.”

Some policymakers are taking such thinking to heart. Senator John Kennedy (R-LA) introduced a three-page bill, the “Own Your Own Data Act of 2019,” which declares that “each individual owns and has an exclusive property right in the data that individual generates on the internet” and requires that social media companies obtain licenses to use this data. Senators Mark Warner (D-VA) and Josh Hawley (R-MO) are filing legislation to require Facebook, Google, and other large collectors of data to disclose the value of personal data they collect, although the bill would not require payments. In California, Governor Gavin Newsome wants to pursue a “data dividend” designed to “share in the wealth that is created from [people’s] data.”

Treating our data as our property has understandable appeal. It touches what the foundational privacy thinker Alan Westin identified as an essential aspect of privacy, a right “to control, edit, manage, and delete information about [individuals] and decide when, how, and to what extent information is communicated to others.” It expresses the unfairness people feel about an asymmetrical marketplace in which we know little about the data we share but the companies that receive the data can profit by extracting marketable information.

The trouble is, it’s not your data; it’s not their data either.  Treating data like it is property fails to recognize either the value that varieties of personal information serve or the abiding interest that individuals have in their personal information even if they choose to “sell” it. Data is not a commodity. It is information. Any system of information rights—whether patents, copyrights, and other intellectual property, or privacy rights—presents some tension with strong interest in the free flow of information that is reflected by the First Amendment. Our personal information is in demand precisely because it has value to others and to society across a myriad of uses.

Treating personal information as property to be licensed or sold may induce people to trade away their privacy rights for very little value while injecting enormous friction into free flow of information. The better way to strengthen privacy is to ensure that individual privacy interests are respected as personal information flows to desirable uses, not to reduce personal data to a commodity….(More)”.