The illusion of personal data as no one's property

Abstract

This paper argues that it is an illusion to suppose that data protection regimes, in Europe and elsewhere, need not deal with the issue of property rights in personal data. Building on the work of John Umbeck, it is clear that, if property rights are not assigned by a legislative action, personal data will be appropriated in proportion to the de facto power of the data market participants to exclude others. It follows that, so long as personal data bears high economic value, the real question is not whether there should be property rights in personal data but whose rights they should be.The paper offers a new perspective on the nature of personal data as a resource, presenting it as a system resource comprising not merely individual pieces of information pertaining to identifiable individuals, but an entire ‘ecosystem’. So viewed, it can be seen that personal data is actually a rivalrous resource, thereby refuting one of the core grounds on which many of the anti-propertization arguments are built.Amongst the conclusions to be drawn from this analysis, the Proposal for a new data protection regulation in Europe can be criticized as a missed opportunity not only to strengthen the position of individuals against the Information Industry but also to open a public debate about the uses to which personal data are put.

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