AFFIRMATIVE-SOLVENCY-INFORMATION OWNERSHIP

AFFIRMATIVE-SOLVENCY-INFORMATION OWNERSHIP — PROPERTY RIGHT 23

PROPERTY REGULATION OF PRIVACY IS WORKABLE AND FEASIBLE

PRIVATE PROPERTY RIGHTS WILL NOT SOLVE ALL PRIVACY ABUSES BUT IT WOULD BE A SIGNIFICANT IMPROVEMENT OVER THE STATUS QUO

James Rule & Lawrence Hunter, Prof. of Sociology at SUNY-Stony Brook & Computer Scientist at (U.S.) National Library of Medicine, "Toward Property Rights in Personal Data," VISIONS OF PRIVACY: Policy Choices for the Digital Age, 1999, EE2001 -JGM P. 176

We have no illusions that establishing the principle we have in mind would automatically create a 'level playing field' in every relationship between ordinary citizens and data-consuming commercial organizations. In some cases, individuals are in no position to refuse any demand for their data, so long as the existence and whereabouts of those data are known. This would be the case, for example, where someone applies for a mortgage and is asked to authorize release of personal data from accounts with public utilities, for example, for electrical or telephone service. Because nearly everyone has accounts of this kind, claims that such data are unavailable would be prima facie suspect. Faced with the possibility of losing the opportunity for a mortgage or a credit card, many consumers would feel that they had little alternative but to authorize release of any data whose existence could be identified. But where would-be consumers of personal data could not know in advance of the existence of data, the right we propose would make it easy to ensure that data were never released.

In this connection, we would think it reasonable to establish legal safeguards against certain categories of overweening demands that people renounce control over their data. We think it would be reasonable to mandate, for example, that no one be refused medical care, simply because he or she refuses to permit the eventual transfer of information emanating from that care for commercial purposes. Thus, a clinic doing HIV testing would have no right to insist on releasing the results of tests, or even on acknowledging the fact that a test had taken place, as a condition for carrying out such tests.

CURRENT TECHNOLOGIES MAKE ENFORCEMENT OF PRIVATE PROPERTY RIGHTS FEASIBLE

Some readers may consider it a utopian scheme to envisage according individuals any meaningful control over the countless instances where data about themselves are commercialized. The notion of charging royalties on sale or trade of personal data - to mass marketers, credit or insurance reporting firms, retailers, or the like - may appear even more so. How could the vast welter of transactions, each worth perhaps only a small amount, possibly be charted, controlled, or compensated? In fact, the same technological and organizational innovations that have fostered mass commercialization of personal data provide ready mechanisms for implementing this right.

ROYALTIES PAID TO THOSE WHO RELEASED INFORMATION WOULD MAKE A PROPERTY RIGHT TO PERSONAL INFORMATION WORKABLE

One way -of making such release acceptable, we have -posited, would be by offering royalties. The immediate result of charging such royalties would be a decrease in the quantity of unsolicited appeals and an increase in their quality. If those selling their goods and services to tar geted audiences faced higher costs for their activities, they would surely be more selective in going about them. To be sure, not all commercial release of personal data is aimed at advertising. Much personal informa tion is sold or traded to enable organizations to discriminate in their dealings with the people it describes. This is the purpose of collecting medical data for use by prospective insurers, or the compiling of data on consumers' past credit accounts for resale to prospective future credi tors. The point of the exercise in cases like these is to enable some orga nization, normally the buyer of a credit or insurance report, to avoid doing business with unprofitable customers and to set profitable terms for those whose business is sought.

IT IS FEASIBLE TO MAKE THE DURATION OF THE SALE OF PRIVATE INFORMATION FINITE

Another key practical issue, for example, is that of how long permission for release of personal data, once given, should remain in force. Obviously, people ought to be able to change their minds about the disposition of their data, for example, if they come to judge that access to a specific record has become a source of dissatisfaction. But where data rights agencies act on behalf of the individuals, such agencies could find it difficult to modify instantly the instructions on which they act. Perhaps there should be a standard contractual period, say, six months, in which one set of instructions for the release of particular forms of information ought to apply. Once such a period had lapsed, the default condition - no release permitted for any commercial purpose - would prevail, until the data subject entered new instructions.

THIS PROPERTY RIGHT WOULD ONLY APPLY TO COMMERCIAL PURPOSES

Nevertheless, any right like the one proposed here needs to be carefully circumscribed, so that it does not vitiate certain uses of personal data that deserve protection. Thus, we stress that our proposal here applies only to sale or trade of personal information for commercial purposes. Such a right would have no bearing, for example, on release of personal information for purposes of public debate or deliberation. It would not block journalists' practices of paying for 'tips' on the private conduct of public figures, for example. Property in personal data would apply only to its use as a tool for commercial dealings.

PRIVACY DISPUTES ARE BEST RESOLVED BY USING OTHER RIGHTS STRUCTURES -- LIKE INDIVIDUAL LIBERTY AND PRIVATE PROPERTY

Richard A. Epstein National Review, September 27, 1999, TITLE: Privacy, Please; Thinking about a troublesome concept. // acs-VT2001

This case shows that the privacy right lines up tolerably well with individual liberty and private property. The debate over FBI surveillance also illustrates this congruence. For a long time now, the FBI has taken the position that it should have a back door into every confidential telephone communication to conduct surveillance against potential criminal activity. The end is surely laudable, but the means are not. The privacy accorded confidential communications by strong encryption helps protect ordinary medical and financial records from the prying eyes of the state and other interlopers. If we weaken the encryption, criminals may be the first ones to take advantage of the weaker security. The appropriate rule is not a blanket weakening of privacy protections, but the continued demand that the police meet the time-honored constitutional standard of probable cause. It is not surprising that the government has backed away from its position, which was a clear overreach.