ABSTRACT
There is widespread debate over whether and to what extent a person should control personal information. This Article provides clarity to the terms and stakes of this debate. First, it lays out a new, normative foundation for the importance of control in data protection regimes, as well as for determining the limits of control after personal data is transferred. The central claim is that personal data – as well as other unique cases that this Article identifies – retains a connection to the person even after they no longer control it. This Article analyzes the philosophical concept of separability, which provides conceptual clarity for parsing when and to what degree legal mechanisms should give people control over information that describes them. While separable uses do not raise normatively relevant issues of control, when personal data is used inseparably, the use risks violating basic deontological maxims – such as refraining from using a person as a means to an end. Such violations undermine human dignity. As a result, policymakers should craft legal rules that allow individuals to control inseparable uses of their personal data.
This Article transcends previous accounts of separability that fail to recognize that separability often turns principally on how the potential thing is used, not on some fundamental feature of the thing. This Article offers a new model of separability that fully accounts for the normative significance of use. This innovative account of separability yields practical benefits by casting new light on an array of puzzles from information law and property law. In information law, separability provides normative grounding for use restrictions of personal data that do not fall prey to the traps of purpose limitations. Separability also provides important insights into property theory and debates over alienability. For instance, it casts new light on the debate over the alienability of rights of publicity. It also determines the boundaries of ‘moral rights’ in copyright, which provide artists with legal mechanisms of control over their creative works that persist after these works are sold. And finally, separability resolves several challenges in the debate over deepfakes by more clearly delineating the interests that people have in uses of their image.
Mark Verstraete, Inseparable Uses, 99 North Carolina Law Review 427 (2021).
First posted 2021-02-03 10:16:30
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