Fan on The Public’s Right to Benefit from Privately Held Consumer Big Data

Mary D. Fan (University of Washington – School of Law) has posted “The Public’s Right to Benefit from Privately Held Consumer Big Data” (Forthcoming, 96 N.Y.U. L. Rev. __ (2021)) on SSRN. Here is the abstract:

The information that we reveal from interactions online and with electronic devices has massive value—for both private profit and public benefit such as improving health, safety, and even commute times. Who owns the lucrative big data that we generate through the everyday necessity of interacting with technology? Calls for legal regulation regarding how companies use our data have spurred laws and proposals framed by the predominant lens of individual privacy and the right to control and delete data about oneself. By focusing on individual control over droplets of personal data, the major consumer privacy regimes overlook the important question of rights in the big data ocean. This article is the first to frame a right of the public to benefit from our consumer big data and propose a model to realize the benefits of this common resource while reducing the harms of opening access.

In the absence of an overarching theoretical and legal framework for property rights in our data, businesses are using intellectual property protections for compiled data to wall off access. The result is that while companies may use the data to find ways to get us to click or buy more, access for nonprofit public interest purposes is denied or at the discretion of companies. The article proposes a model for sharing the benefits of our pooled personal information. Drawing on insights from property theory, regulatory advances, and open innovation, the article proposes protections to permit controlled access and use for public interest purposes while protecting against privacy and related harms.