Bill for Property Rights in Data Offers Little Substance

April 23, 2019  Robert Gmeiner

  • Property
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Senator John Kennedy (R-LA) recently introduced S. 806, which if enacted would be known as the Own Your Own Data Act. This bill assigns individuals an exclusive property right in the data they generate through online interactions. These data may be licensed to a social media company if the license agreement is willfully entered into, is in plain language, and does not exceed 500 words. The user may cancel the agreement at any time.

Superficially, this bill sounds good for consumers, but it has some deeper problems. First, in the Lockean tradition, everyone has a property in him or her “self,” so it seems reasonable to include the data that define a person in that property. Locke also wrote that mixing unowned substance with labor makes the substance into the laborer’s property. Social media companies gather these data which are created through interactions with the user. They have property rights too. Someone could obtain the same information that the social media companies collect by looking over your shoulder at the computer and taking notes with a pencil and paper.

Senator Kennedy’s bill says nothing about sharing or subsequent use of data. Sharing with third parties would not be appropriate if the user has an exclusive property right, but sharing isn’t a very common practice. Facebook has done it, and faced scandals for it, but few other companies do it. Data are valuable, so sharing them gives away a company’s competitive advantage. Companies use the data they collect to target advertisements that serve as their revenue source. Using demographic data for advertising is not new; the new element is the ability to target ads much more effectively. Methods change, but practices don’t.

Senator Kennedy’s bill sounds good on the surface, but it promises to do rather little besides impair social media companies’ business models, which rely on the collection and analysis of user data. Without it, users will have to pay for their services with money instead of data. Rhetoric notwithstanding, consumers indicate by their actions that they do like social media companies. The bill superficially sounds good, but offers little for consumers in return for ruining the convenience they enjoy from social media.