This contribution 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.
Purtova, Nadezhda, Illusion of Personal Data as No One’s Property: Reframing the Data Protection Discourse (October 29, 2013). Forthcoming in Online Privacy: are we consenting to our future? Explorations in current privacy issues. Joseph A. Cannataci & JP Mifsud Bonnici Eds. Law, Science and Technology Series (Rome: Edizioni Scientifiche Italiane).