ABSTRACT
Private collection and processing of consumers’ personal data gives rise to significant privacy risks for the subjects of the data collected, but there is also significant social and economic value in the continued collection and processing of consumer information. Unfortunately, the risks and rewards of continued consumer data collection are poorly balanced. The entities who collect and process consumer data suffer little risk but reap most of the reward. The consumer whose data is collected, in contrast, suffers high risk but little reward. Recent privacy legislation provides a strong foundation for privacy rights but should be supplemented to address the risk-reward imbalance.
This Article proposes an individualized, market-based solution to balance the risk-reward scales while protecting the social and economic benefits of a healthy consumer data economy: a new intellectual property right in consumers’ personal information. Central to the proposed model is the right to exclude data traders from collection and transfer of data associated with that individual. As this Article explains, a limited right to exclude collection and transfer of consumer data is supported by leading property and economic theory as a bridge between the current consumer data economy and a more desirable one. The Article finishes with an examination of the proposed rights and the most important limitations on them: fair use, duration, and exceptions to enforcement.
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Stuart Leijon, Data, People, and Property: Modernizing Privacy through Intellectual Property Law 49 AIPLA Quarterly Journal 361 (2021).
First posted 2022-01-07 10:00:20
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