"Inalienable" has become a synonym for "absolute." This is not what Thomas Jefferson means when he talks about an inalienable right to the pursuit of happiness.

Alternatives to rules of property are not limited either to anarchism or anti-transactional paralysis. The usual alternative to a rule of property, in fact, is a rule of liability.

Introduction

Privacy as an Inalienable Right

This is a good first draft: it gets the brush cleared away so that the next draft can reach the real issues. You don't need to use almost 40% of your space to tell us privacy is important or that the Net presents threats to privacy. Writing for this readership, you don't in fact need to say that at all. So one route to improvement is to use all that space on your central idea. You can begin by telling the reader what it is, succinctly and clearly, so she knows what she's reading about. Then you can show how you came by the idea, work out more of its details, and show how you respond to the most likely and important questions the reader may have. Then you can write a conclusion in which you show the reader where he can take your idea further on his own.

Right now that central idea is that giving people a property right in their personal information is not an important part of the solution to privacy problems in the Net. The primary reason offered to support the conclusion is that property in intangibles is difficult and controversial. This will come as something of a surprise to global finance capitalism, which depends on a basic property right in an intangible (the ownership of shares of future, speculative profits from the operation of a business) that is now considered so solid and non-controversial that immense derivative superstructures, themselves consisting of a plethora of intangible ownership rights, are raised on top of them.

But arguing for or against "ownership" may be in itself more confusing than clarifying. As Calabresi & Melamed demonstrated in their "view of the cathedral" argument half a century ago, property rules and liability rules in analogous situations are interchangeable, in the absence of transaction costs, along the lines established by Coase. The entire framework of GDPR—with the opt-in structures that amount to an individual right to exclude, protected by a liability regime administered by DPOs, requiring duties of care from all parties who engage in relevant data collection and processing—is a demonstration of property phenomena produced by liability machinery.

But it is not sufficient to think of our privacy interests as about "our" data. All the inferences that arise from data about us over time, and about all other people—including those we are directly connected to and the larger population of everyone else in society—are affecting us, conveying one sort of power or another over us to the entities that process "our" and "others'" data to generate those inferences, and those to whom they disseminate what they infer. In a society in which information is power, unless the people control information they do not control power, and there can be no democracy. So the central idea you are writing about might benefit from reformulation. Perhaps the formulation that is most productive is not at the level of property or liability mechanisms, but at the anterior level, from which Calabresi and Melamed started: at what rights are inalienable, and therefore have to be protected in contexts that are not only the immediate transactions of the resident and the nuisance, or the data subject and the processor.

These could have been links. When writing for the web, make it easy for your readers. They should be able to see your sources at the moment that you cite them, using the easiest tool they have, which is usually a browser click.

Assessing Online Privacy

-- By NevfelAkkasoglu - 12 Mar 2021

Setting the Stage

Privacy has always been important for people. In the age of technology and the internet, online privacy, which is just one aspect of privacy, has become at the center of the privacy debates, probably partly due to the internet's infrastructural evolution and the emergence of ubiquitous big tech. However, privacy is not just a trendy fad. It is, by nature, one of the characteristics that distinguish the human species from other living things.

When you are at home, you can be sure that you are let alone—you can read whatever you want and utter and talk to others about anything you are up for. You have complete autonomy for self-realization without the fear of encroachment because you know that one's house has legally been acknowledged as his privacy. However, when you are on "line"—wire, in a sense, you are no longer at home, where even government cannot intrude without Constitutional justifications. Your activities, your intellectual interactions manifest themselves on a non-physical actuality. But, still, your clicks, likes, and habits are the manifestation of your private personality. Even though the Internet has brought a whole new dimension, arguably, all activities on the Internet are forms of reading and communication—the two actions that you traditionally do "offline." Performing these online does not justify being deprived of privacy protection for many reasons. We will attempt to find these reasons in this paper.

We begin by asking that is it reasonable for your mason worker to come by and peer through what you do inside your house after he has finished building it? Does erecting your dwelling them the right to monitor your privacy? No. It follows that even an internet service provider (ISP) cannot interfere with your privacy in this sense, let alone other behavioral data collectors. ISP is supposed to provide the infrastructure you paid for rather than surveilling how you used the service. Also, let's push the public utility analogy. The current indispensable widespread internet use in modern life will tell us that there is nothing to prevent us from acknowledging that the internet is an essential need, like electricity or water. The city water management is supposed to bill how much water the customer consumes but not figure out and sell the data of whether they use the water to rinse the vegetables or have a bath with it.

Can Data Ownership Help?

However, the internet, a tool that has the potential to advance the human race through easy sharing rapidly, has been so abused by the profit-by-ads-centered business mindset that it is reduced to a giant surveillance mechanism. As of now, few can imagine what the internet would look like without technology monopolies, unfortunately. As the big players grow fatter, privacy concerns arise: On what basis can people claim online privacy?

Some people assert that creating ownership over information, treating your information as property, presumably as intellectual property, would help. However, this approach is flawed not only because the application of IP laws to online information is dissonant (Fn-1) but also the very premise of the ownership of information itself. Claiming ownership for non-tangible things is an inherently complicated business. History testifies it: Nobody ever disputes the ownership itself for tangible things, and foundational physical property laws have hardly changed for centuries. But the intellectual property ownership has always been subject to existential disputes because of its controversial roots and artificial nature. Health data can show, as an example, its ineffectiveness: Currently, patients do not own the data generated in their health records; HIPAA established privacy rules for this data and enabled it to be shared with third parties, including the government, for the public health purposes. However, even if patients own that information, it is almost impossible to make a case that data ownership would give patients any more control than they now have: The government can already acquire data whether via Constitutional "takings power" or granting this power to private parties, as it currently does with "HIPAA Waiver." (Fn-2) Granting ownership rights to the information produced online would be like building on a sand ground, let alone a relief for privacy.

Conclusion

Privacy is a fundamental human right, such as the right to life or liberty, not a commodity that you can trade. Information about you is the core component of the right to privacy itself. Treating and trading a person's online information like a commodity is just as absurd as receiving compensation for giving up your freedom. Even if the person is not aware that they have the right to privacy, they do have it. It is an inalienable right that originates from being a human. And it cannot be ceded to third parties by consent or opt-in mechanisms. The misunderstanding stems from the illusion of using everyday expressions such as "your data," "sell my data", and this implies a false impression of "ownership" on privacy. However, privacy is a right, which is demanded here, not a property that is marketable.

It is absolute respect for a fundamental human right, not data ownership, that would protect online privacy. This can result in the evaporation of specific business models; it would not leave people in abjection. Instead, it would create an environment in which there are less intrusion and more deliberate mental production. We can live very well in a world without a privacy tracking advertising business model. In addition to protecting privacy, lessening private surveillance as much as possible will allow for the healthier development of democratic aspirations in society and limit one of the most effective means of intimidation by authoritarian governments.

Fn-1: Anomalies of creating intellectual property for individual’s data: Mark A. Lemley, Private Property: A Comment on Professor Samuelson's Contribution, 52 STAN. L. REV. 1545 (2000).

Fn-2: Barbara J. Evans, Much Ado about Data Ownership, 25 HARV. J. L. & TECH. 69 (2011).

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, NevfelAkkasoglu
• #Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.