Data Rights: Four Remedies

The thorny issue of rights tops our collective “Worry List” for the digital future. Most of us know little about what happens to our personal data online, but we feel pretty sure there’s reason to be nervous.

Privacy is first-among-equals in the anxiety stakes. Industrial-scale data harvesting is somewhere close. Fears for an emerging oligarchy of internet giants are hardly controversial.

All are different facets of the same core problem, of course. As consumers, we lack either ownership or control of the digital profiles buried in the trail of our online footprints.

Personal data is the world’s most valuable resource, reflected vividly in the market capitalisations of Facebook and Google. Vast influence and rewards accrue to companies which track our digital lives, then sell what they find – your intel plus their channels – to advertisers.

No other market in human history has worked like this. As Mark Rotenberg, president of the Electronic Privacy Information Centre in Washington DC, described in a recent letter to The Economist:

“Giant companies capture markets in the internet economy through non-price mechanisms. Value is found not in the sale of a product to a customer, but the extraction of personal data from the individual and its re-purposing for advertising. There is little internet users can do to make meaningful choices. They are the commodity. Markets, in the traditional sense, do not exist.” — The Economist, LettersMay 6, 2017

Fears for this new business model have been well-rehearsed. Policy options to respond are less familiar. Is it even viable to implement a global policy on data rights? If so, what is the best remedy?

At first glance, available options vary from the ultra-liberal to communitarian. On closer inspection, such conventional terminology is misleading. In a stab at simplicity, here is a shortlist of four policies to regulate personal data:

  1. Consumer Rights. Lawmakers could grant more rights to individuals. Without express consent, data harvesting as it exists today would become illegal. Today’s internet incumbents would be drastically curtailed. So too – possibly – would the incidence of data breaches and financial fraud.
  2. Portability. Mandatory disclosure of how online data is tracked and traded would enable informed decisions by consumers. Rather than curb the core business of today’s internet giants, more transparency could be the catalyst for new intermediary services and consumer choice.
  3. Open Source. All privately-held data could be made freely available to all. An open source regime would transform vast silos of proprietary data into a public good, prompting fair competition in services. Hoarding of data at huge scale would no longer confer advantage.
  4. Property and Contracts. In classic liberal theory, property rights are a precondition for free trade and efficient markets. A new legal regime to assign and entrench ownership of digital assets could facilitate fair valuations and transparent trade. For disciples of Adam Smith, this is a moral action to stall an emerging oligopoly in a shady and unregulated market.

Some of these options may be compatible. Others sre mutually exclusive. Consumer rights and portability look complementary, perhaps in incremental steps. Open source is an all-or-nothing idea of revolutionary proportions. To assign property rights would require a global register of all data assets – ambitious,  but a suggestion already drafted by the World Bank as a prospective new tenet of development policy.

Today’s data economy is a burlesque and still fledgling polity. The finer points of how and when to proceed will test the competence of lawmakers. Technological change is exponential,  posing a challenge to all democrats. Statute evolves (when it evolves at all) in shorter and linear steps.

Any attempt at reform brings unintended consequences. Even so, there is reason to persevere. Data – unlike gold, say, or the telecoms spectrum – is not finite. The more we generate, the more useful the insights to be gleaned from mining it.

“Data is not the new oil. It is the new light.” — Mark Parsons, secretary-general, Research Data Alliance in Boulder, Co.

A bitter cocktail of new consumer rights and stiffer competition law may even help the giant internet players to help themselves. Improving data heralds new answers to any number of global crises: from energy saving to public safety, and innovation from personalised medicine to driverless cars.

Grasping the nettle of data rights is in our shared interest. Human progress depends on the information we give our machines.

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