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The Privacy Advisor | US lawmakers consider whether your data should be a 'property right' Related reading: A view from Brussels: Is the finish line for the Data Act in sight?




There's no shortage of hearings on Capitol Hill these days about privacy. Specifically, lawmakers need to figure out what the country will do about a federal U.S. privacy law, whether to establish one and, if so, what it looks like. In nearly all the recent hearings on a federal law, the idea of data as a commodity or a "property" of sorts has come up.

On Thursday, at the Senate Committee on Banking, Housing and Urban Affairs, lawmakers brought in witnesses to ask what that might look like: Is it possible? Could consumers benefit off of the value of their personal data if Congress imbued them with the power to do so?

Chairman of the committee Sen. Mike Crapo, R-Idaho, noted at the outset that while data is fundamentally different than traditional commodities, like homes or cars, for example, there must be something to the idea given that data frameworks proliferating in other jurisdictions increasingly include data-as-property themes, if not provisions.

"For example, the [EU] General Data Protection Regulation grants an individual the right to request and access personally identifiable information that has been collected about them," Crapo said. "There is an inherent element of ownership in each of these rights, and it is necessary to address some of the difficulties of ownership when certain rights are exercised, such as whether information could pertain to more than one individual, or if individual ownership applies in the concept of derived data."

But Sen. Sherrod Brown, D-Ohio, ranking member of the committee, wasn't shy about the fact that he is incredibly skeptical that data as a commodity ever works in practice. That's not to say he doesn't think consumers should have more control. 

" ... I want to begin this hearing with a simple question — who has the right to control your personal, private information: you or Silicon Valley CEOs, like Mark Zuckerberg? I think we all agree that Americans should have more control over their private information," he said. But it's the practical implementation of data as property and subsequent added complexity to online transactions that concerns him. 

"Instead of making companies responsible for protecting their customers’ privacy, this idea puts the burden on all of us," Brown said. "Now imagine that if every time you wanted to use Facebook or pay for something with an app or login to a Wi-Fi network, you had to read even more legal fine print and check a box saying, 'OK, I waive my personal right to my data to use this service.' Or you had to join some kind of so-called 'data collective' to sell your data. Working people in this country have enough to worry about — they’re trying to get the kids out the door and get to work on time, to make rent and save for college and pay the bills. The idea that people should also have to manage their data like a landlord manages its tenants is ludicrous."

In addition, what about big tech's current revenue models? Won't those have to shift if the people making money off consumer data is the consumer themselves? 

"If Americans want more control over their private information, we have to find a way to prevent corporations from mining our data and selling it to each other," Brown said. "Creating a supermarket for selling away our privacy does the opposite." 

But John Ritter, founding chair of the American Bar Association Committee on Cyberspace Law, who testified at the hearing, said the United States has historically led the world in writing the rules for electronic commerce, but "at this point, we're falling behind. We need to re-establish this nation's leadership," he said, adding that establishing the "legal right of ownership" to data should be established. 

However, not everyone in the room agreed that establishing data ownership is a good idea. 

William Rinehart, director of technology and innovation policy at the American Action Forum, said that's the wrong approach. 

"Valuing personal data is actually very difficult because what is in demand is actually insights gained from that data," he said, adding that the value of data is really in watching how a user behaves over time and interacts with various players, not one static data point itself. "There's no perfect way to value data, and it's really context dependent."

But Sen. Mark Warner, D-Va., was incredulous at the idea that just because it's difficult means it shouldn't be done. We're smart enough to figure this out, was the response. 

Michelle Dennedy, CEO of DrumWave, agreed with Rinehart that context matters to the value of data, she was more in line with Warner's thinking: This can and should be done. "I think data is some kind of property right," she said. "Data to me is currency, so if you think about a U.S. penny, that alone isn’t very much. The story that that penny tells when you put it together with the rest of my data story [matters]. … When we’re talking about valuing datasets, let's be careful to understand that what you're really talking about is the lifetime." 

Though his concerns were less related to the economics of the issue and more related to protecting consumer privacy, the ACLU's Chad Marlow in some way agreed with Rinehart in that he also testified against the idea of granting consumers data ownership. While consumers certainly should make the choice to opt in to the sharing of their data, data as property is not actually a "pro-privacy" proposal, he said. That's why in the dozen or so states where data-as-privacy bills have been introduced, none passed. 

One of the ACLU's major concerns is the way in which such a model could disproportionately affect vulnerable populations. 

"Persons with less wealth are likely to end up with less privacy," Marlow said, while "economically secure people would find it easy to say no to the sale of their information. It's too tempting a sales pitch for a family trying to put food on their table." 

Instead of data-as-property models, Marlow pushed for rules that allow consumers to make affirmative opt-in choices over the sale and sharing of their data, such as California's Consumer Privacy Act. 

While there was certainly no conclusion on the matter at yesterday's hearing, lawmakers from the Senate Banking, Housing and Urban Affairs Committee have introduced related bills. Sen. John Kennedy, R-La., has introduced a bill that would grant consumers data property rights, and Warner has introduced a bill that would inform consumers about the value of their data

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