Op-Ed: Consumers need a new legal right to control personal data
Most American Internet users grasp this Silicon Valley truism: “If you’re not paying, you’re the product.” We gain “free” services and conveniences by yielding our personal information, which in turn is sold or traded to all sorts of interested parties. Those parties exploit this information to determine what products to pitch us, on what terms. Consumers may find the results attractive, especially if they don’t know what they’re being denied based on their data. But for privacy advocates, trading free services for unconstrained and uncompensated use of personal information is a nightmare.
In fact, the privacy news is even more disturbing than a straightforward exchange of personal data for specific services. Businesses and other parties rely less and less on us to learn who they’re dealing with. Instead, they draw from vast reservoirs of data from other sources, including past purchases and website visits, social media postings and computerized court and tax records. Commercial data brokers compile such information and sell it to buyers ranging from retailers to prospective employers, generally without the consent or knowledge of the individual concerned.
European privacy law would block most of these activities, forbidding release of personal data, without consent, for purposes other than those for which it is first collected. By contrast, American data industries operate on a “finders keepers” principle, leaving almost no personal information off-limits for commercial purposes.
The privacy-eroding forces at work in America’s data extravaganza are now so deeply ingrained that only fundamental change in the legal status of personal data can offer hope against them. We need a new kind of federal property right over commercialization of one’s own personal data. Such a right would resemble that of artists and writers over the use of their works, requiring permission and compensation, if desired, from those who wish to reproduce what they’ve created. For personal information, the new right would permit no commercial transfer without explicit consent.
America’s information industries will decry the very notion of such a right in terms easy to imagine: It would curtail freedom, innovation and profits. Besides, it won’t work. Nobody, it will be said, wants to have to give or deny permission whenever another party seeks to use their data.
But in practice, a right like this would foster a new kind of information industry: data rights agencies. Much as ASCAP and BMI license usage and collect royalties for songwriters and performers, these new companies would be gatekeepers for commercial traffic in personal data, enforcing stated wishes of individuals concerning its use, collecting fees and charging commissions for their work.
One could stipulate release of one’s data to female-owned businesses, for example, but to no one else. Lovers of self-disclosure could renounce all rights to their data, opting for a world much like what we all experience today, or sell them to the highest bidder. Privacy fanatics could invoke the default condition and avoid all commercial surveillance and uses.
Consumers could readily change their specifications, and hard cases could be referred directly to the individual. Each of us would become, for commercial purposes, owners of our own lives — much as celebrities already own the right to profit from commercial use of their names and images.
Just as celebrities can’t prevent news reports on their actions, such a new property right would not be absolute. It should not interfere with the flow of personal information in civic life — for example, by blocking disclosure of unfavorable personal information about candidates for office, activist groups or the subjects of biographies.
Nor should consumers be able to select only “good news” about themselves for release — such as records of their paid-on-time accounts but not their overdue bills. But where sellers seek to delve through our personal data before offering us products, services and opportunities, we need the option of saying “no” in advance.
Far from stifling innovation, a right like this could foster a healthy tension between privacy interests and the allure of disclosure.
As consumers decided how much personal data to release in exchange for specific rewards promised by information industries, those industries would be motivated to tailor their requests to meet consumers’ demands. Setting up data rights clearinghouses and agencies would be complex, but just as brokerages have sprung up to gather and sell our data, so would gatekeeper agencies.
Establishing a right to the privacy of our data, and creating meaningful choice over how it can be used, might not take privacy off the endangered species list. But it would forestall its total extinction.
James B. Rule is a researcher at the Center for the Study of Law and Society at UC Berkeley and the author of “Privacy in Peril: How We Are Sacrificing a Fundamental Right in Exchange for Security and Convenience.”
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