Creative Commons-style licenses for personal information, Part III: What are the challenges?

In the first two posts, I described how personal information licenses might work and why they might be useful in shifting the debate around how personal information is collected and used. Sharing information could be cool!  People could exercise choices!  Companies could be pressured to offer similar choices!Unfortunately, it wouldn’t be that easy.  There are certainly obstacles and challenges to creating a system of personal information licenses for common use, which I describe below.

1) Personal information isn’t property—why do you want to propertize it?

The short answer is, we don’t. We’re well aware that there is a history of academic debate on this issue, pro and con around whether making personal information personal property would make it easier to protect individual privacy.  Although the issues are certainly interesting, we don’t want to step into that debate and we don’t think we have to for the licenses we’re imagining.First, let’s examine how personal information is viewed today.  I can’t own a fact.  I can’t own the fact that I’m 32, but I can have copyright in an essay in which I state I am 32 and I can have copyright in a database that includes the fact I am 32 if I’m creative in building the structure of that database (in the U.S.).  We can understand the reasoning behind this.  We want to live in a world where facts are “free" to be used and reused without any need to pay a licensing fee.But the simple declaration, “You can’t own a fact” doesn’t begin to describe the many ways in which people are collecting data, selling it, renting it, and otherwise making money off of it.  When a company sells a mailing list, it may not “own” the fact that I live at XYZ Avenue in Brooklyn, but it certainly is using it to its advantage.  Why, then, should the fact that I can’t own the fact of where I live keep me from sharing that data as I like and trying to control it in new ways?The digital revolution is forcing us to think beyond property/not property.  Facts have become valuable even when they're not technically "owned" by anyone.  I haven’t come up with some snappy new terms to use, but the issue should no longer be defined solely around "property/not property."

Some new businesses seem to be working off this model. Blue Kai and KindClicks, while collecting personal information for market research, provide individuals with a way of stating their preferences and monetizing their data.  KindClicks, for example, allows individuals who contribute data to then donate the money they make off their data to the charity of their choice.  BlueKai collects data through cookies, but provides a link on their site by which users can see what information has been gathered about them. Those who want to opt out can.  Those that choose to participate in BlueKai’s registry can then choose to donate a portion of their “earnings” to charity.

We don’t actually want to model these companies’ ways of valuing data.  CDP’s mission isn’t to make sure that everyone gets a dollar here or a dollar there every time their data is accessed.  To us, the value of such information is immense to the public and yet not easily measurable in dollars.  But we do want to explore the idea that we could just take control of our data and obtain value from it, even if it’s the non-monetary, social value of providing something useful to the public.

2) How would these licenses be enforceable? What about existing terms of use on online forums, social networks?

This is a big question.  I’m not sure what kind of dataset could be licensable and the extent to which a license could cover facts within that dataset.  Could the license really encourage new forms of sharing if there was no way to prevent people from using individual facts within that dataset outside of the license terms?  How useful would such a license be?Arguably, Creative Commons licenses are not easily enforced.  They certainly have an easier case for arguing that they are enforceable; there has been one case I know of where a court upheld the terms of the license.  But the vast majority of people using photographs, art, and other work outside the terms of the license do it without impunity.  Most CC license holders never find out their Flickr photo was used outside the license terms, and most wouldn’t have the resources to do anything about it even if they did find out.  Yet CC licenses have still managed to impact societal norms on intellectual property.Personal information licenses may still have an effect, then, on societal norms about how information is collected and shared regardless of how much the licenses are litigated.  Even the process of litigation may help us as a society have a smarter conversation about current practices.As to the objection that the licenses wouldn't work in the face of existing terms of use for social networks and other sites -- the fact that I might not be able to "license" my own information that I put myself on Facebook just underscores why creative, proactive, even aggressive strategies might be necessary.

3) Why would you encourage people to put their personal information out in public?  Isn’t it irresponsible to encourage people to provide information that could increase risk of identity theft and fraud?

I don’t want to dismiss this concern off-hand.  But as my father likes to say, everything in life has good and bad.  There are many things we do that are risky, and we try our best to minimize those risks, both as a society when we pass laws and as individuals when we take more particular, personal measures.  Driving is a very dangerous activity.  It is also a very valuable one.  Many governments have decided to legislatively require the wearing of seatbelts.  Many of us personally make the decision to practice other safe driving techniques that aren’t legally required.We think it’s imperative that we, as a society, think hard and carefully about how to minimize the risks of personal information being used, collected, and exchanged.  Creative Commons-style licenses for personal information sharing may or may not be the best way to address today’s privacy problems.  I'm curious to hear if you think the risks outweigh the benefits and why.  But to shut down the idea solely because the risk exists -- that is not going to help push the conversation forward.CONCLUSIONLicenses for making personal information more widely available for research and public use—would they work?  Maybe, maybe not.  Worth exploring?  Most definitely.We’d love to hear your questions and comments.