ElectronicjournalofcomparaTiveLaw,vol.8.3(october2004),<http://www.ejcl.or THE PROPERTIZATION OF PERSONAL DATA AND IDENTITIES JEJ. Prins Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Abstract In this article, it is suggested that, although it is all too often argued that vesting a property right in personal data is not in line with the continental, human-rights based approach to privacy, the European system definitely offers room for a property-rights model. Further analysis reveals, however, that there are doubts about whether such an approach would indeed offer the claimed prospects of achieving a higher level of personal data protection Given developments such as ubiquitous computing, the use of personal data will increasingly occur within, and be structured by, social, economic and institutionalized settings. Thus it suggested here that data protection mechanisms must be structured along lines of bility in relation to identities, and not be based on ownership of personal dat control and 1. Introduction During the past decade, many commentators and several organizations(among them the American Civil Liberties Union and the Electronic Frontier Federation) have argued that individuals should receive fair compensation for the use of their personal data. Given the fact that protection of personal data is expensive and in short supply, whereas the collection and use of personal data is wasteful and inefficient, commentators claim that we should consider market-oriented mechanisms based on individual ownership of personal data. In the end, if markets were allowed to function more effectively, there would be less privacy invasion. 3 Many of the arguments that have been put forward in favour of a proprietary perspective on protection mechanisms derive from American sources. There has been Professor of Law and Informatization, Faculty of Law, Tilburg University, The Netherlands On the campaigns of both organizations, see Jessica Litman, 'Information Privacy/Information Property, 52 Stanford Law Review(2000), 1290 3 See, e.g., Kenneth C. Laudon, Markets and Privacy, 39 Commumications of the ACM9(1996), 103, Ann Bartow, Our Data, Ourselves: Privacy, Propertization, and Gender,, 34 University of san Francisco Law Review(Summer 2000), 633, at 695; Lawrence Lessig, Privacy as Property,69 Social Research 1 (Spring 2002), 255; Paul Sholtz, Transaction Costs and the Social Costs of Online Privacy, 6 First Monday 4 (May 2001),availableat:<http://firstmonday.org/issues/issue65/sholtz/index.htmp.Seeforanextensiveoverview of the literature footnote 19 Litman(2000)Electronic Journal of Comparative Law, vol. 8.3 (October 2004), <http://www.ejcl.org/> 1 THE PROPERTIZATION OF PERSONAL DATA AND IDENTITIES J.E.J. Prins1 Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract In this article, it is suggested that, although it is all too often argued that vesting a property right in personal data is not in line with the continental, human-rights based approach to privacy, the European system definitely offers room for a property-rights model. Further analysis reveals, however, that there are doubts about whether such an approach would indeed offer the claimed prospects of achieving a higher level of personal data protection. Given developments such as ubiquitous computing, the use of personal data will increasingly occur within, and be structured by, social, economic and institutionalized settings. Thus it is suggested here that data protection mechanisms must be structured along lines of control and visibility in relation to identities, and not be based on ownership of personal data. 1. Introduction During the past decade, many commentators and several organizations (among them the American Civil Liberties Union and the Electronic Frontier Federation2 ) have argued that individuals should receive fair compensation for the use of their personal data. Given the fact that protection of personal data is expensive and in short supply, whereas the collection and use of personal data is wasteful and inefficient, commentators claim that we should consider market-oriented mechanisms based on individual ownership of personal data. In the end, if markets were allowed to function more effectively, there would be less privacy invasion.3 Many of the arguments that have been put forward in favour of a proprietary perspective on protection mechanisms derive from American sources. There has been 1 Professor of Law and Informatization, Faculty of Law, Tilburg University, The Netherlands. 2 On the campaigns of both organizations, see Jessica Litman, ‘Information Privacy/Information Property’, 52 Stanford Law Review (2000), 1290. 3 See, e.g., Kenneth C. Laudon, ‘Markets and Privacy’, 39 Communications of the ACM 9 (1996), 103; Ann Bartow, ‘Our Data, Ourselves: Privacy, Propertization, and Gender’, 34 University of San Francisco Law Review (Summer 2000), 633, at 695; Lawrence Lessig, ‘Privacy as Property’, 69 Social Research 1 (Spring 2002), 255; Paul Sholtz, ‘Transaction Costs and the Social Costs of Online Privacy’, 6 First Monday 4 (May 2001), available at: <http://firstmonday.org/issues/issue6_5/sholtz/index.html>. See for an extensive overview of the literature footnote 19 of Litman (2000)