Azziz Z. Huq (University of Chicago Law School) has posted “The Public Trust in Data” (Georgetown Law Journal, Vol. 110, 2020) on SSRN. Here is the abstract:
Personal data is no longer just personal. Social networks and pervasive environmental surveillance via cellphones and the ‘internet of things’ extract minute-by-minute details of our behavior and cognition. This information accumulates into a valuable asset. It then circulates among data brokers, targeted advertisers, political campaigns, and even foreign states as fuel for predictive interventions. Rich gains flow to firms well positioned to leverage these new information aggregates. The privacy losses, economic exploitation, structural inequalities, and democratic backsliding produced by personal data economies, however, fall upon society at large.
This Article proposes a novel regulatory intervention to mitigate the harms from transforming personal data into an asset. States and municipalities should create “public trusts” as governance vehicles for their residents’ locational and personal data. An asset in “public trust” is owed and managed by the state. The state can permit its use, and even allow limited alienation, if doing so benefits a broad public rather than a handful of firms. Unique among the legal interventions proposed for new data economies, a public trust for data allows a democratic polity to durably commit to public-regarding management of its informational resources, coupled to judicially enforceable limits on private exploitation and public allocation decisions. The public trust itself is a common-law doctrine of ancient roots revived in the Progressive Era as an instrument to protect public assets against private exploitation. Both federal and state courts, including the U.S. Supreme Court, have since endorsed a variety of doctrinal formulations. The result today is a rich repertoire of rules and remedies for the management of common property. Personal data, usefully, has many similarities to assets long managed by public trust. And familiar justifications for creation of a public trust logically extend to personal data. Indeed, municipalities in the United States, Europe, and Canada have started to experiment with limited forms of a public trust in data. Generalizing from those experiences, this Article offers a more general ‘proof of concept’ for how personal data economies can be leashed through the public trust.