Data Types, Data Doubts & Data Trusts

João Marinotti, Data Types, Data Doubts & Data Trusts, New York University Law Review Online (Forthcoming)

24 Pages Posted: 21 Mar 2022

See all articles by João Marinotti

João Marinotti

Indiana University Maurer School of Law; Center for Intellectual Property Research, Indiana University Maurer School of Law; Information Society Project, Yale Law School

Date Written: 2022

Abstract

Data is not monolithic. Nonetheless, the word is frequently used indiscriminately, referring to a large number of different concepts. It may refer to information writ large, or specifically to personally identifiable information, discrete digital files, trade secrets, and even to sets of AI-generated content. Yet each of these types of “data” require different governance regimes in commerce, in life, and in law. Despite this diversity, the singular concept of data trusts is promulgated as a solution to our collective data governance problems. Data trusts—meant to cover all of these types of data—are said to promote personal privacy, increase corporate transparency, facilitate the sharing of data, and even pave the way for the next generation of artificial intelligence. These anticipated benefits, however, require the body and flexibility of equitable trust law and its inherent fiduciary relationships. Unfortunately, American trust law does not allow for the existence of such general data trusts. If anything, the judicial, academic, and legislative confusion regarding data rights—or its status as property—demonstrates that discussions of data trusts may be ignoring a key element. Without first determining whether (or what kind of) data can be recognized as a trust res (i.e., as trust property) under existing law, it may be premature to accept data trusts as the private law solution to our data governance ills. If, on the other hand, the implementation of data trusts requires legislative intervention, its purported benefits must be analyzed in contrast to the myriad other new and evolving data governance frameworks that would similarly require legislation. By analyzing existing trust law and the difficulties of defining data rights, this essay highlights the urgent need to pursue doctrinally, legislatively, and technologically viable data governance strategies.

Keywords: data, data governance, privacy, property law, trust law, law and technology, fiduciary duty, data trust, data rights

JEL Classification: K11, K19, 033

Suggested Citation

Marinotti, João, Data Types, Data Doubts & Data Trusts (2022). João Marinotti, Data Types, Data Doubts & Data Trusts, New York University Law Review Online (Forthcoming), Available at SSRN: https://ssrn.com/abstract=4058529 or http://dx.doi.org/10.2139/ssrn.4058529

João Marinotti (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Office #247
Bloomington, IN 47405
United States

HOME PAGE: http://law.indiana.edu/about/people/details/marinotti-joão.html

Center for Intellectual Property Research, Indiana University Maurer School of Law ( email )

211 South Indiana Avenue
Bloomington, IN 47405
United States

Information Society Project, Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

HOME PAGE: http://law.yale.edu/joao-marinotti

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
217
Abstract Views
1,197
rank
195,164
PlumX Metrics