In our current technologically advanced epoch where people spend more time living on the digital grid, we are synonymous with photos we post on Instagram and the captions we tweet on Twitter. This begs the question, do we own the family picture we took in the Milford Sound? If you scour through the length terms & conditions and privacy policies of social media platforms, you will see clauses such as these.
From a legislative perspective are we obliged to take the same approach we take in property law in digital data and treat our intangible digital information as our personal property? Researchers have coined the term “instrumentalist theory of propertisation”. This article probes into the intricate relationship we have we with our information on the silicon grid. To recap, under property law, the title owner:
has exclusive possession to the right owner.
has the right to security and transmissibility.
has the right to manage use and receive income for personal or commercial use by others.
The Commodification of personal digital data
Harvard Professor Lawrence Lessig is a Tech Lawyer who advocates that digital data is personal property. Professor Lessig established in Harper & Row Publishers Inc v Nation Enterprises that copyright is an "engine of free expression" that enables creativity to develop in the market. He argues that from a privacy perspective, that if digital data is personal property, our data should attract stricter protections in property law. This argument was grounded by Philosopher John Locke's theory of personal property, that every person has property rights their inherent property rights. The real-world implications of the 'personal property' approach mean that we could enforce our rights as tangible pieces of property against companies who collect our data.
When you use My Fitness Pal, it uses information such as your daily caloric intake and weight to curate fitness and lifestyle choices. Applying Lessig's idea of personal property, there is a transfer of property and service between the users and My Fitness Pal. It makes sense because, in reality, My Fitness Pal will utilise such information outside of the scope of helping their users by selling such data to nutrition or wellness companies. The exchange of information between the user, data analyst and interested third parties show that Big Data helps companies push their products on to a targeted group of consumers. Because when our data is quantified, we are considered part of the supply chain, and thus should be entitled to property rights.
The idea of privacy in data
There are ethical arguments against the commodification of personal data. Warren and Brandeis argued that the privacy aspect of data is more critical than the humdrum dullness of property and commercial law. They purport that commodifying personal information will raise an unethical point of, 'those that cannot afford such protection on privacy are not entitled to it. They argue about the idea of 'inviolate personality', where an individual has an inherent right of principle that is different from personal property.
Furthermore, Warren and Brandeis argued that similarly to privacy law, property law aims to prevent publication. However, the right to be left alone under property law only extends to the profits of any work done upon the property and does not take into account the idea that there is value in the prevention of the publication or in our case, the prevention of Big Data encroaching into our personal data for their commercial use. In the process of propertisation of data, there are a lot of non-commercial rights through the laws of tort that we lost if data and information were to just be treated as a form of intangible good.
A counter-argument to that is that property rights are the most potent form of a socially enforced construct in the common law sphere. John Hagel III and Marc Singer argue that the value of the personal data is the social cost of data protection, as well as a company's valuation of such information. In this paper, they advocate for the idea of an infomediary, which is when the owner of their data recognises the value of the data, they can commercialise it through a trusted agent and make money and profit through their own means. This introduced the idea of "information fiduciary", which is that agents or even Big Data to an extent has a fiduciary obligation when it comes to handling personal data or information from consumers.
Whose right is it?
Data is information. The sale and trade of data will inhibit the freedom of information by implementing a commercial incentive. The biggest problem when it comes to personal details is the intersectional nature of it. Numerous invested companies will commercialise your data in a transaction that can have legitimate interests. An everyday example of this is when you conduct a transaction at a bank. The data has already travelled from the teller to the bank to the Ministry of Finance. The bank would have legal interests in your information for authentication purposes, while the Ministry of Finance might credit scores to determine whether a loan can be issued. In this example, there are several parties that have legitimate interests in this information and the propertisation of data would definitely create a labyrinth of legal embroilment.
The Courts have approached the idea of information sovereignty and privacy. In the case of Haynes v. Alfred A. Knopf, the Courts debated whether referencing uncontested facts about a person a violation of any general privacy rules. The facts of the case involved authors who had included undisputed facts about a person in their recent works. The Courts agreed that the authors had not violated the plaintiffs right to privacy. Whereas in Sorrell v IMS Health Inc the U.N. Supreme Court stated that the exchange of data is a free flow of commercial information represents the values of the First Amendment. Both of these cases show that the courts are leaning towards the antithetical of the notion of information propertisation.
Conclusion and current privacy legislations
If data or information were to be treated as property, it would most likely fall within some variant of the intellectual property framework. Intellectual property acknowledges that ideas and creations need to be protected, and have created instruments in the form of trademarks, copyright, patents and designs. The main purpose of these instruments is to protect and regulate how ideas can be licensed or sold, not necessarily to acknowledge that the information themselves form as intangible property. The Biometric Information Privacy Act of Ilinois is an Act that provides protection for biometric information, however, the act does not state anything regarding the propertisation of data as well.
It is a relatively new area of IT law jurisprudence and I look forward to the developments in this area. We should look at current privacy legislations around the world for insights on how governments are treating the idea. Under current legislation, the Australian government does not recognise data in its own as an intangible piece of property. The New Zealand Privacy Act only deals with the way information is used and process, but there is yet to have any legislative action on whether such information can be regarded as property or not. In Australia High Court case FCT v United Aircraft Corporation, Chief Justice Latham said:
'Knowledge is valuable, but knowledge is neither real nor personal property. A man with a richly stored mind is not for that reason a man of property.
Sources
Cases
Harper & Row v. Nation Enterprises, 471 U.S. 539
United States v. Miller, 425 U.S. 435 (1976)
Smith v. Maryland, 442 U.S. 735 (1979)
Haynes v. Alfred A. Knopf, Inc. (1993) - 8 F.3d 1222 (7th Cir. 1993)
Federal Commissioner of Taxation v United Aircraft Corporation [1943] HCA 50
Legislation
Privacy Act 1993 (New Zealand)
IP Laws Amendment Act 2015 (Australia)
Biometric Information Privacy Act 2008 (Illinois)
Patents Act 1990 (Australia)
Trade Marks Act 1995 (Australia)
Journal articles, books and essays
A. F. Westin Privacy and Freedom ( Technology and Privacy: The New Landscape, Cambridge, MIT PRESS 1997)
L. Lessig Privacy as property (Social Research: An International Quarterly of Social Sciences No 69(1), 2002) at page 247-269.
L. Lessig Code and Other Laws of Cyberspace (Basic Books, New York, 1999)
J. Hagel III & M. Singer Net Worth: Sharing Markets When Consumers Make the Rules (Harvard Business School Press, 1999) at page 19-20.
P. Farhi Me Inc: Getting the Goods on Consumers (Washing Post, 14 February 1999) at page H1
S. MacFeely In search of data revolution: Has the official statistics paradigm shifted? (Statistical Journal of the International Association for Official Statistics 2, 2020) at page 1-20.
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