Wednesday, May 13, 2020
There is widespread debate over the rights of control that people retain over their personal information. This Article offers several insights that provide clarity to the terms and stakes of this debate. First, it lays out a new normative foundation for the importance of control in data protection regimes, as well as for determining the limits of control that people should retain over their personal data after it is transferred. The central claim is that personal data—as well as other unique cases that this Article identifies—retains a connection to the person even after they no longer control it. The Article analyses of the philosophical concept of separability, which provides conceptual clarity for parsing when and to what degree legal mechanisms should provide control for people over information that describes them. While separable uses do not raise normatively relevant issues of control, when firms use personal data inseparably, they risk violating basic deontological maxims—such as refraining from using a person as a means to an end—which undermine human dignity. As a result, policymakers should craft legal rules that allow individuals to control inseparable uses of their personal data.
However, this Article transcends previous accounts of separability that fail to recognize that separability often turns principally on how the potential thing is used, not on some fundamental feature of the thing. This Article offers a new model of separability that fully accounts for the normative significance of use. This innovative account of separability yields practical benefits by casting new light on an array of puzzles from information law and property law. In information law, separability provides normative grounding for use-restrictions of personal data that do not fall prey to the traps of purpose limitations. Separability also provides important insights into property theory and debates over alienability. For instance, it casts new light on the debate over the alienability of rights of publicity as well as determining the boundaries of “moral rights” in copyright, which provide artists with legal mechanisms of control over their creative works that persist after these works are sold. And finally, separability resolves several challenges in the debate over deep fakes by more clearly delineating the interests that people have in uses of their image.