Regulating Data as Property: A New Construct for Moving Forward

The global community urgently needs precise, clear rules that define ownership of data and express the attendant rights to license, transfer, use, modify, and destroy digital information assets. In response, this article proposes a new approach for regulating data as an entirely new class of property. Recently, European and Asian public officials and industries have called for data ownership principles to be developed, above and beyond current privacy and data protection laws. In addition, official policy guidances and legal proposals have been published that offer to accelerate realization of a property rights structure for digital information. But how can ownership of digital information be achieved? How can those rights be transferred and enforced? Those calls for data ownership emphasize the impact of ownership on the automotive industry and the vast quantities of operational data which smart automobiles and self-driving vehicles will produce. We looked at how, if at all, the issue was being considered in consumer-facing statements addressing the data being collected by their vehicles. To formulate our proposal, we also considered continued advances in scientific research, quantum mechanics, and quantum computing which confirm that information in any digital or electronic medium is, and always has been, physical, tangible matter. Yet, to date, data regulation has sought to adapt legal constructs for “intangible” intellectual property or to express a series of permissions and constraints tied to specific classifications of data (such as personally identifiable information). We examined legal reforms that were recently approved by the United Nations Commission on International Trade Law to enable transactions involving electronic transferable records, as well as prior reforms adopted in the United States Uniform Commercial Code and Federal law to enable similar transactions involving digital records that were, historically, physical assets (such as promissory notes or chattel paper). Finally, we surveyed prior academic scholarship in the U.S. and Europe to determine if the physical attributes of digital data had been previously considered in the vigorous debates on how to regulate personal information or the extent, if at all, that the solutions developed for transferable records had been considered for larger classes of digital assets. Based on the preceding, we propose that regulation of digital information assets, and clear concepts of ownership, can be built on existing legal constructs that have enabled electronic commercial practices. We propose a property rules construct that clearly defines a right to own digital information arises upon creation (whether by keystroke or machine), and suggest when and how that right attaches to specific data though the exercise of technological controls. This construct will enable faster, better adaptations of new rules for the ever-evolving portfolio of data assets being created around the world. This approach will also create more predictable, scalable, and extensible mechanisms for regulating data and is consistent with, and may improve the exercise and enforcement of, rights regarding personal information. We conclude by highlighting existing technologies and their potential to support this construct and begin an inventory of the steps necessary to further proceed with this process

Examined Lives: Informational Privacy and the Subject as Object

In the United States, proposals for informational privacy have proved enormously controversial. On a political level, such proposals threaten powerful data processing interests. On a theoretical level, data processors and other data privacy opponents argue that imposing restrictions on the collection, use, and exchange of personal data would ignore established understandings of property, limit individual freedom of choice, violate principles of rational information use, and infringe data processors\u27 freedom of speech. In this article, Professor Julie Cohen explores these theoretical challenges to informational privacy protection. She concludes that categorical arguments from property, choice, truth, and speech lack weight, and mask fundamentally political choices about the allocation of power over information, cost, and opportunity. Each debate, although couched in a rhetoric of individual liberty, effectively reduces individuals to objects of choices and trades made by others. Professor Cohen argues, instead, that the debate about data privacy protection should be grounded in an appreciation of the conditions necessary for individuals to develop and exercise autonomy in fact, and that meaningful autonomy requires a degree of freedom from monitoring, scrutiny, and categorization by others. The article concludes by calling for the design of both legal and technological tools for strong data privacy protection

Digitalization of International Trade

The question this article addresses is how the WTO supports and deals with digital trade. The article then analyzes how existing WTO agreements have dealt with digital trade. The article also addresses recent trade agreements particularly the USMCA

Privacy, Public Goods, and the Tragedy of the Trust Commons: A Response to Professors Fairfield and Engel

User trust is an essential resource for the information economy. Without it, users would not provide their personal information and digital businesses could not operate. Digital companies do not protect this trust sufficiently. Instead, many take advantage of it for short-term gain. They act in ways that, over time, will undermine user trust. In so doing, they act against their own best interest. This Article shows that companies behave this way because they face a tragedy of the commons. When a company takes advantage of user trust for profit, it appropriates the full benefit of this action. However, it shares the cost with all other companies that rely on the wellspring of user trust. Each company, acting rationally, has an incentive to appropriate as much of the trust resource as it can. That is why such companies collect, analyze, and “monetize” our personal information in such an unrestrained way. This behavior poses a longer term risk. User trust is like a fishery. It can withstand a certain level of exploitation and renew itself. But over-exploitation can cause it to collapse. Were digital companies collectively to undermine user trust this would not only hurt the users, it would damage the companies themselves. This Article explores commons-management theory for potential solutions to this impending tragedy of the trust commons

DRM and Privacy

Interrogating the relationship between copyright enforcement and privacy raises deeper questions about the nature of privacy and what counts, or ought to count, as privacy invasion in the age of networked digital technologies. This Article begins, in Part II, by identifying the privacy interests that individuals enjoy in their intellectual activities and exploring the different ways in which certain implementations of DRM technologies may threaten those interests. Part III considers the appropriate scope of legal protection for privacy in the context of DRM, and argues that both the common law of privacy and an expanded conception of consumer protection law have roles to play in protecting the privacy of information users. As Parts II and III demonstrate, consideration of how the theory and law of privacy should respond to the development and implementation of DRM technologies also raises the reverse question: How should the development and implementation of DRM technologies respond to privacy theory and law? As artifacts designed to regulate user behavior, DRM technologies already embody value choices. Might privacy itself become one of the values embodied in DRM design? Part IV argues that with some conceptual and procedural adjustments, DRM technologies and related standard-setting processes could be harnessed to preserve and protect privacy

Transatlantic Issues in Electronic Commerce

The global and dynamic e-commerce marketplace will increasingly impact the nature of national and international economic and government relations. This paper highlights three areas where the United States and European Union (EU) governments differ in their approaches as to how best to serve their domestic constituencies: treatment of trade flows, approach to tax regimes, manner of protecting personal data. Because the Internet marketplace is global but policy jurisdictions remain local, policy conflicts can develop. Policymakers on both sides need to harness technology and promote incentives for the private sector to help solve problems caused by the jurisdictional overlap. In addition to cross-border jurisdictional overlap, problems within a country can develop from issue convergence and policy overlap. That is, because the e-commerce marketplace is so integrated, the policy toward handling one issue, even within the national context, has implications for the policy set that is available to policymakers on other issues. Therefore, policies within a country must be more carefully meshed with each other with an eye toward consistency in the face of the forces of electronic commerce.transatlantic issues, electronic commerce