The Public Trust in Data
Personal data is no longer just personal. Social networks and pervasive environmental surveillance via cellphones and the Internet of Things extract minute by minute details of our behavior and cognition. This information accumulates into a valuable asset. It then circulates among data brokers, targeted advertisers, political campaigns, and even foreign states as fuel for predictive interventions that shape individuals’ lives, often for the worse. Rich gains flow to firms that are best positioned to leverage these new information aggregates. The privacy losses, economic exploitation, structural inequalities, and democratic backsliding produced by personal data economies, however, fall upon society at large.
This Article proposes a novel regulatory intervention to mitigate the harms that result from transforming personal data into an asset. States and municipalities should create “public trusts” as governance vehicles for their residents’ locational and personal data. An asset in public trust is owed and managed by the state—although it can be in the physical custody of private actors. The state can permit its use, and even allow limited alienation, provided that doing so benefits a broad public rather than a handful of firms. Unique among the legal interventions proposed for new data economies, a public trust for data allows a democratic polity to durably commit to public-regarding management of its informational commons, coupled to judicially enforceable limits on private exploitation and public allocation decisions. At the same time, because data remains in the physical custody of private actors, state actors cannot use it for undemocratic or repressive ends. The public trust itself is a common law doctrine of ancient roots. It was revived in the Progressive Era as an instrument to protect public assets against private exploitation. Both federal and state courts, including the U.S. Supreme Court, have since endorsed a variety of doctrinal formulations. The result today is a rich repertoire of rules and remedies for the management of commonly held property. Personal data, usefully, has many similarities to assets long managed by public trust. And familiar justifications for creation of a public trust logically extend to personal data. Indeed, municipalities in the United States, Europe, and Canada have started to experiment with limited forms of a public trust in data. Generalizing from those experiences, this Article offers a “proof of concept” for how personal data economies can be leashed through the public trust form—a mechanism for minimizing private harms while preventing abusive state action.
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