IV. Inalienable Property

This is a good first draft, coherent and forceful. The conclusion, however, simply raises without further analysis the fundamental question the essay is really about: why should be property be the ruling mental construct concerning data? We take as axiomatic that property rules and liability rules can be transposed into one another. Why property rules are the right choice in this instance is obscure, for reasons you begin to summarize only when the essay is over. Following the Calabresi and Melamed approach to the cathedral, indeed, inalienability rules might actually also be worth considering. But in any event the route to the improvement of the essay is to take the conclusion as a premise for further consideration, not an afterthought.

Private Property, No Trespassing

-- By TalMaman - 10 Oct 2020

Data holds value - some have defined it as "the 21st century's most valuable commodity", or "the new oil". The underlying argument here is that, essentially, data is an infinite, durable and reusable resource. Accordingly, it would be reasonable to conclude that such an amorphous subject does not perfectly fit in any of our modern-day legal terms (i.e., property, currency, commodity, etc.). This is a problem that must be addressed through legislative means, for reasons outlined further below. Nonetheless, amorphous challenges aside, let us analogize personal data to private property and consider a tale.

I. Dear guests & data mongers, you have overstayed your welcome!

Once upon a time, at the dawn of the 21st century, there lived a young woman named Jane in a house on a hill. One bright morning, a salesman named Facebook knocked on Jane's door and offered new, trendy services - if she let him in her home, he could show her pictures of friends and provide all the latest gossip. Intrigued, Jane welcomed Facebook into her home. For years, Facebook stayed in her home. She shared photos with him, let him listen to her private conversations, and unwittingly yielded her spending habits. All the while, Facebook continued to provide Jane with the latest on her friends, old and new - she could see their vacation photos, listen to their favorite songs or even try their recipes. Over time, Jane noticed an increase in flyers, invites and promotions that were often irresistible. In most cases, the advertisements were exactly what she was looking for! Eventually, she realized that Facebook had been sharing all she had told him with many others, beyond just her friends, and she just would not have it anymore. After freeloading on her coach for more than a decade, Facebook had to go.

Despite Jane's initial courtship, by her own volition, she may remove Facebook from her property and in certain circumstances may be entitled to do so by force. Legal frameworks clearly recognize Jane's right to her home or private property and allows her to remove any unwanted guests from it. Specifically, property rights include the owner's ability to manage use of the property by others and to ultimately exclude others.

In reality, if Jane wishes to cleanse her life of Facebook, Twitter, Amazon, or some other tech giant, her legal right to do so lies in her contract with the tech giant, namely, within the terms of use and privacy policy. Whether it be an account deletion, retrieval of personal information, or the cessation of information usage by the tech giant, Jane must rely on the standard contract drafted by the tech giant...a "take it or leave it" construct for the masses.

II. Why the free market does not work

A result of free markets, the disproportionate leverage on user’s rights affords an exorbitant amount of power for the very few, profit-driven giants. Such imbalance of power has proven to create chaos. A visit to each privacy policy, or terms of use, will often lead to a different maze of definitions and rights relating to users' personal information, most of which are incomprehensible to average users.

Worse yet, as evidenced by Facebook's terms of use in 2007, such policies never even afforded users the right to delete their account. So, while free market forces have brought Facebook's current terms of use to acknowledge users' rights in their content and afford each user the right to delete their account, Facebook still reserves the right to retain users' information in its systems. Ultimately, and definitionally, users' "ownership" over their data remains in flux, only to be redefined by the forthcoming policy update.

III. Taming the giants

This abuse of power must be stopped, and balance should be restored. One approach would be to increase user awareness, while mandating high levels of transparency in an attempt to shift power back to users. Yet, this may not be sufficient. In short, personal data should be uniformly defined with an associated set of inherent rights.

In Mark Zuckerberg's 2018 Senate hearing, Senator Nelson inquired whether Facebook considers personally identifiable data to be owned by the user, or by Facebook, assuming the latter. Such a question would be better suited for the congressman. Said differently, the time has come for Congress to decide what "data" is and who it belongs to. Alan Westin purported that protecting data requires a mix of legal, social and technological solutions. At this point in time, it seems the obvious missing piece in the trilogy is law. Cybersecurity firms and innovative technologies are prevalent, regarding the storage and protection of information. Social awareness has increased in terms of the tech giants, with documentaries such as The Social Dilemma. However, comprehensive legal frameworks in the U.S. are dated, disparate, and largely absent within federal jurisdictions.

One such legal framework was introduced into Congress by Senator Kennedy in March 2019 as "Own Your Own Data Act" and has been given a 4% chance to be enacted. Regrettably, those odds are probably not far off, given the giants' hold on Congress and the value at stake - users' data and the current freedom that the giants have to abuse it.

IV. The downside of data regulation

There is, of course, a downside to intervening with free markets through regulation. In essence, the legislator is a slow tortoise versus the giant tech cheetahs. Treating personal information as property to be licensed or sold may induce people to trade away their data for very little value while injecting enormous friction into free flow of information.

Thus, a challenge stands before us and the legislators, which is to create a new definition surrounding "personal data" how to name it, and to coronate its owners. The aim for such legislation should not be to capture each scenario that the technological world presents, but rather, to create certainty and uniformity for both users and giants.

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