Meaningful Consent: The Economics of Privity in Networked Environments
30 Pages Posted: 1 Apr 2015 Last revised: 18 Aug 2015
Date Written: March 31, 2015
Recent work on privacy (e.g. WEIS 2013/4, Meaningful Consent in the Digital Economy project) recognises the unanticipated consequences of data-centred legal protections in a world of shifting relations between data and human actors. But the rules have not caught up with these changes, and the irreversible consequences of ‘make do and mend’ are not often taken into account when changing policy.
Many of the most-protected ‘personal’ data are not personal at all, but are created to facilitate the operation of larger (e.g. administrative, economic, transport) systems or inadvertently generated by using such systems. The protection given to such data typically rests on notions of informed consent even in circumstances where such consent may be difficult to define, harder to give and nearly impossible to certify in meaningful ways. Such protections typically involve a mix of data collection, access and processing rules that are either imposed on behalf of individuals or are to be exercised by them. This approach adequately protects some personal interests, but not all – and is definitely not future-proof. Boundaries between allowing individuals to discover and pursue their interests on one side and behavioural manipulation on the other are often blurred. The costs (psychological and behavioural as well as economic and practical) of exercising control over one’s data are rarely taken into account as some instances of the Right to be Forgotten illustrate. The purposes for which privacy rights were constructed are often forgotten, or have not been reinterpreted in a world of ubiquitous monitoring data, multi-person ‘private exchanges,’ and multiple pathways through which data can be used to create and to capture value. Moreover, the parties who should be involved in making decisions – those connected by a network of informational relationships – are often not in contractual, practical or legal contact. These developments, associated with e.g. the Internet of Things, Cloud computing and big data analytics, should be recognised as challenging privacy rules and, more fundamentally, the adequacy of informed consent (e.g. to access specified data for specified purposes) as a means of managing innovative, flexible, and complex informational architectures. This paper presents a framework for organising these challenges using them to evaluate proposed policies, specifically in relation to complex, automated, automatic or autonomous data collection, processing and use. It argues for a movement away from a system of property rights based on individual consent to a values-based ‘privity’ regime – a collection of differentiated (relational as well as property) rights and consents that may be better able to accommodate innovations. Privity regimes (see deFillipis 2006) bundle together rights regarding e.g. confidential disclosure with ‘standing’ or voice options in relation to informational linkages. The impacts are examined through a game-theoretic comparison between the proposed privity regime and existing privacy rights in personal data markets that include: conventional ‘behavioural profiling’ and search; situations where third parties may have complementary roles conflicting interests in such data and where data have value in relation both to specific individuals and to larger groups (e.g. ‘real-world’ health data); n-sided markets on data platforms (including social and crowd-sourcing platforms with long and short memories); and the use of ‘privity-like’ rights inherited by data objects and by autonomous systems whose ownership may be shared among many people.
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