Beyond data ownership
Proposals for data ownership are widely misunderstood, aim at the wrong goal, and would be self-defeating if implemented. This Article, first, shows that data ownership proposals do not argue for the bundle of ownership rights that exists over property at common law. Instead, these proposals focus...
| Main Author: | |
|---|---|
| Format: | Journal article |
| Language: | English |
| Published: |
Cardozo School of Law
2021
|
| _version_ | 1824459114262036480 |
|---|---|
| author | Cofone, I |
| author_facet | Cofone, I |
| author_sort | Cofone, I |
| collection | OXFORD |
| description | Proposals for data ownership are widely misunderstood, aim at the wrong goal, and would be self-defeating if implemented. This Article, first, shows that data ownership proposals do not argue for the bundle of ownership rights that exists over property at common law. Instead, these proposals focus on transferring rights over personal information solely through consent.
<br>
Second, this Article shows the flaws of a property approach to personal information. Such an approach magnifies well-known problems of consent in privacy law: asymmetric information, asymmetric bargaining power, and leaving out inferred data. It also creates a fatal problem: moral hazard where corporations lack incentives to mitigate privacy harm. The moral hazard problem makes data ownership self-defeating. Recognizing these deficiencies entails abandoning the idea that property over personal data can achieve meaningful protection.
<br>
This Article, third, develops proposals for privacy law reform amidst a national debate on how to formulate federal and state privacy statutes. It argues for a combination of what Calabresi and Melamed call property and liability rules. A mixed rule system is essential because property rules alone fail to protect data subjects from future uses and abuses of their personal information. This Article implements this idea with two recommendations. First, it proposes bolstering private rights of action for privacy harm unattached to statutory breach. Second, it proposes reinforcing ongoing use restrictions over personal data by strengthening the purpose limitation principle, an underutilized ongoing use restriction in American law. |
| first_indexed | 2025-02-19T04:36:38Z |
| format | Journal article |
| id | oxford-uuid:a16957c6-a612-4809-8533-a03e8d17045f |
| institution | University of Oxford |
| language | English |
| last_indexed | 2025-02-19T04:36:38Z |
| publishDate | 2021 |
| publisher | Cardozo School of Law |
| record_format | dspace |
| spelling | oxford-uuid:a16957c6-a612-4809-8533-a03e8d17045f2025-01-30T14:16:32ZBeyond data ownershipJournal articlehttp://purl.org/coar/resource_type/c_dcae04bcuuid:a16957c6-a612-4809-8533-a03e8d17045fEnglishSymplectic ElementsCardozo School of Law2021Cofone, I Proposals for data ownership are widely misunderstood, aim at the wrong goal, and would be self-defeating if implemented. This Article, first, shows that data ownership proposals do not argue for the bundle of ownership rights that exists over property at common law. Instead, these proposals focus on transferring rights over personal information solely through consent. <br> Second, this Article shows the flaws of a property approach to personal information. Such an approach magnifies well-known problems of consent in privacy law: asymmetric information, asymmetric bargaining power, and leaving out inferred data. It also creates a fatal problem: moral hazard where corporations lack incentives to mitigate privacy harm. The moral hazard problem makes data ownership self-defeating. Recognizing these deficiencies entails abandoning the idea that property over personal data can achieve meaningful protection. <br> This Article, third, develops proposals for privacy law reform amidst a national debate on how to formulate federal and state privacy statutes. It argues for a combination of what Calabresi and Melamed call property and liability rules. A mixed rule system is essential because property rules alone fail to protect data subjects from future uses and abuses of their personal information. This Article implements this idea with two recommendations. First, it proposes bolstering private rights of action for privacy harm unattached to statutory breach. Second, it proposes reinforcing ongoing use restrictions over personal data by strengthening the purpose limitation principle, an underutilized ongoing use restriction in American law. |
| spellingShingle | Cofone, I Beyond data ownership |
| title | Beyond data ownership |
| title_full | Beyond data ownership |
| title_fullStr | Beyond data ownership |
| title_full_unstemmed | Beyond data ownership |
| title_short | Beyond data ownership |
| title_sort | beyond data ownership |
| work_keys_str_mv | AT cofonei beyonddataownership |