The question of data ownership sits at the intersection of law and economics. Should information about us — our transactions, habits and sporting performance — belong to us like property, to be used or disposed of as we choose?
Classical law and economics teaches that clear property rights support efficiency: when ownership is known, goods can be traded more easily and investment in their development becomes more likely. But data is a peculiar asset. Richard Posner, the former judge and influential economist, observed as early as the 1980s that privacy protection — and therefore, in practice, restricting access to personal data — can be economically inefficient. In his view, much of the information we hide is concealed not for the common good, but for private advantage, which in economic terms can lead to waste and the shifting of costs on to others.
On the other hand, granting full property rights over personal data is hardly a simple recipe for success. Property rights work well for physical goods: if I sell a car, I stop using it, and the new owner has exclusive control. Information does not work like that. I can share it and still possess it. If every click or training metric had to be the subject of an individual transaction, we would sink into a sea of bureaucracy and transaction costs. Researchers point out that creating a system of “micropayments” for the mass use of data would be either impossible or uneconomic, even if advocates of blockchain and Web3.0 take a different view. In any case, an individual data point about one person is worth only a tiny fraction of a large dataset. So even if individuals “owned” their data, they would have weak bargaining power. The result? Giants holding vast quantities of information would still dictate the terms, while ordinary people would gain little beyond an illusory sense of control.
This does not mean, however, that we are condemned to choose between two extremes: total privacy, blocking the flow of information, or full commercialisation of data with little regard for individual rights. The solutions differ on the two sides of the Atlantic. In Europe, the approach is more regulatory: personal data is protected almost as a human right, as reflected in the GDPR, which gives individuals, among other things, the right to transfer or erase their data. In the United States, the approach is more market-based: there is no single comprehensive federal statute, but rather sector-specific rules and an emphasis on not stifling innovation. The American assumption is that freedom also includes the freedom of business to use data, provided it does not cause harm. Privacy issues are often dealt with after the fact, through the activity of the Federal Trade Commission, which has brought hundreds of cases against companies misusing data. Interestingly, in the United States, treating data as property also faces constitutional obstacles: restricting the circulation of information may be seen as a restriction on free speech. As a result, the balance between privacy protection and economic freedom differs sharply from country to country.