Property rights in personal data: Learning from the American discourse

Abstract

This contribution is an attempt to facilitate a meaningful European discussion on propertization of personal data by explaining the idea as it emerged in its ‘mother-jurisdiction’, the United States. The piece starts with an overview of how the current US legal system addresses the data protection problem and whether, according to the US commentators, the law does it effectively. Furthermore, the contribution presents propertization of personal information as an alternative to the existing data protection regime and one of the ways to fill in the alleged gaps in the US data protection system. The article maps the US propertization debate. Pro-propertization arguments are considered from economic perspective as well as from the perspective of the limitations of the US legal and political system. In continuation it analyses proposals on how property rights in personal data would have to be regulated, if at all, in case the idea of propertization is accepted. The main points of criticism of propertization are also sketched. The article concludes with a brief summary of the US propertization discourse and, most importantly, with a list of the lessons Europeans can learn from their American counterparts engaging in the debate in the home jurisdiction. Among the main messages is that the outcome of the debate depends on the definition of the problem propertization is called on to tackle, and that it is the substance of the actual rights with regard to personal data that matters, and not whether we label them as property rights or not.