Naam Tilburg Institute for Law, Technology, and Society email

1. Naam Tilburg Institute for Law, Technology, and Society email

2. Property Rights in Personal Data: Would It Solve Privacy Problems? Prof. Corien Prins Center for Law, Technology, and Society (TILT) www.uvt.nl/tilt Tilburg University Oslo, 23 November 2007

3. From Psysical Products to Immaterial Data • Biobanks and Biometrics • it is all about personal data, information and knowledge • Personal data, information and knowledge • it is all about power and money • Power and Money • in the end our challenge is balancing interests • Balancing interests • What instruments can best be used?

4. Property Rights as the Ultimate Solution • Argument: extend property interest to personal data of individuals (why not grant individuals same rights in their name as companies); • Argument: developments in intellectual property • Why: data about individuals nowadays have become a key commercial asset (e.g. data in biobanks; Google/YouTube); • Why: individuals must be able to negotiate and bargain over the use of their data; • Why: individuals need something in return (return benefits) • Result: data markets will be allowed to function more effectively; • Result: less privacy invasion and more trust.

5. Economic Arguments • Protection of personal data is expensive and in short supply, whereas the collection and use of personal data is wasteful and inefficient; • Thus: we should consider market-oriented mechanisms based on individual ownership of personal data. • Laudon, Communications of the ACM, 1996; • Mann, First Monday, 2000.

6. Law and Technology Arguments In our society protection mechanisms based on private instruments gain priority; Vesting an ownership right would make it expressly clear that data subjects own personal data, not the business that collected them; Advances in technology make it easier to create and sustain the conditions for individual and personalized choices of data use.

7. Day-to-day Practice • Customer data is a means of generating cash flow and silencing creditors; • Personal data changes hands or ‘ownership’, as part of merger-acquisitions, reorganizations and other strategic company movements; • Companies may even believe that they have ownership rights in the personal data (compilations; section 55 UK data protection act/stealing data) or body material/parts (add-on blood products); • Companies offer benefits in return for using personal data (personalised services).

8. Property Arguments and Human Right Dimension • Property rights perspective does not fit the human rights perspective as adopted in, e.g., article 8(1) of the Rome Convention for the Protection of Human Rights and Fundamental Freedoms; • Human right is a right of non-interference, not a right of positive entitlement; • More than just a commodity (dignity, social value of privacy) • Privacy is attached to individuals by virtue of their personhood, and, as such, this right cannot be waived or transferred to others; • Privacy is linked to constituting and maintaining a person’s personal integrity. Thus, it is a non-commodifiable right.

9. However: • Various developments testify to the growing influence of property thinking in the human rights domain: • property in personality (name, appearance, voice, etc.); • property in human body parts. • Contractual freedom and human rights (individuals are allowed to waive the protection of their fundamental rights/individual autonomy); • Directive 95/46 (are provisions imperative; Directive favors utilitarian considerations; • Distinguish Privacy from Personal Data (listing in art. 7 and 8 European Charter on Fundamental Rights).

10. Would a Property Approach Solve Privacy Problems? • Arguments made in legal literature: • merely addresses problems in relation to private sector use (what about public use of biometric data); • problems related to the concept of property and the concept of personal data itself; • Data may relate to more than an individual: groups of people • ‘take it or leave it’ terms under the threat of exclusion or denial of access to digital services; • licensing all the necessary data would be costly, inconvenient, and time-consuming, liability?; • framing the debate in terms of proprietary rights neglects the fact that what data subjects really seek: control (and perhaps: benefits). • And: What is our real privacy problem?

11. It is all about Combining Dataabout Identities • Individual data versus combined data (linking databases); • Data are not just data (not one uniform category) • Ambient intelligence; RFID, personalized services; • Focus not so much on the individual data, but on the effects of the use of present-day technologies and the use of combined data; • Thus: focus on identities (types of persons; types of citizens/types of consumers/types of healthy/unhealthy people, type of ethnic origin, etc.).

12. Shifting in Our Attention • Shift our attention from individual sets of personal data toward the statistical models, profiles and the algorithms with which individuals are assigned to a certain group or ‘identity’; • Data protection mechanisms must be structured along lines of control and visibility. • Data protection mechanisms must be structured along lines of transparency and trust • … and maybe other benefits??

13. What We Need • We need to know and understand how social and economic identities are constructed, influenced and used; • We need instruments to know and to control how our ‘lives’ are ‘created’ and influenced; • Our identity is more that an administrative identity (ipse identity – idem identity) • We do not need ownership of individual data.