Volume 56

With Big Data Should Come Big Responsibility: Regulating Supply and Demand of Alternative Data

by Abbe Dembowitz

For centuries, Americans have enjoyed the right to privacy—the “right to be let alone.” The privacy interests of Americans, however, face a unique threat in the form of a “Data Rush”—the Gold Rush of the 21st Century. Through a strategy known as “alternative data” investment, the biggest hedge fund managers across the world are purchasing, collecting, and trading on a seemingly boundless amount of personal information—a practice that is almost entirely unregulated. These funds, in the name of innovation, are exploiting massive amounts of information that consumers generate merely by engaging in their day-to-day activities such as walking, shopping, and eating. Current insider trading laws enable funds to escape liability through contractual sign-off provisions that impose no fiduciary duty on either the companies gathering the data or the funds purchasing it. This contribution first discusses the current landscape of alternative data. It then proposes a legislative imposition of explicit informed consent requirements on companies that sell customer information. In light of the pervasiveness of the alternative data practice, the proposed legislation would explicitly deem any person in possession of the confidential information a fiduciary. Companies that sell the private consumer information without consent would thus violate their fiduciary duty owed to consumers. Consequently, fund managers who fail to do their due diligence and trade on such information would now be subject to insider trading prosecution under a misappropriation theory. This proposition aims to empower consumers without stifling innovative investment techniques. Although technological advancements open the door for privacy infringements, they also present an opportunity for new and innovative legislation.

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