In economics, a public good is a good that is both non-excludable and non-rivalrous in that individuals cannot be effectively excluded from use and where use by one individual does not reduce availability to others.
If one thinks about the nature of an individual’s informational privacy, it must surely come under the heading of public good, since:
a) if you have a copy of someone’s personal data, that doesn’t somehow exclude others from having access to that information (including the person about which the data relates)
b) your use of someone else’s information does’t automatically reduce the availability of that information to others
Thinking about the “Common pool resources” category, Schlager and Ostrom (1992) identify five property rights that are most relevant for the use of common-pool resources, including access, withdrawal, management, exclusion and alienation. These are defined as:
- ACCESS – the right to enter a defined physical area and enjoy non-subtractive benefits (eg hike, canoe, sit in the sun)
- WITHDRAWAL – the right to obtain resource units or products of a resource system (eg. catch fish, divert water)
- MANAGEMENT – the right to regulate internal use patterns and transform the resource by making improvements
- EXCLUSION – the right to determine who will have an access right, and how that right may be transferred
- ALIENATION – the right to sell or lease exclusion, management or withdrawal rights
Doesn’t this go to the heart of the problem?:
An individual automatically assumes that they should have (complete) ownership and control over their personal information. They wouldn’t expect their personal information to be part of a “common pool” of resources.
What about a situation whereby the individual’s identity is temporarily kidnapped and modified in the sense that classifications are made which reveal something new about the person (or in other words, some pieces of information are used to infer something new – with the potential of big data, through the use of data, models and algorithms people are able to generate new personal information that perhaps the data subjects didn’t even know, whereby others will know us better than we know ourselves).
The fundamental problem is that informational privacy is non-rivalrous, and would therefore fit into the category of “public good”.
I have to say that I have struggled with these concepts, and have been thinking about how they relate to concepts of kidnap, trespass, and cloning
One potential problem area is the way in which someone’s privacy could be invaded not only in a private place, but it could also be invaded in a public space.
Floridi asserts that thinking about an invasion of privacy in terms of trespass doesn’t make any sense in a public space, so privacy shouldn’t be seen in terms of trespass
Westin sees informational privacy as the right to be let alone. So, if one’s personal information were “kidnapped”, that would be a privacy violation.
Of course, one’s personal information can’t be kidnapped in the normal sense of the word, because what is really happening is that the individual’s identity is “cloned”, or “temporarily kidnapped”, whereby a piece of personal information is gained by someone without at the same time depriving others of the possibility of having access.
If someone were to break into the offices of an examinations board, and make a copy of (or even just memorize) the questions that have been set for an exam it doesn’t mean that the examiners have somehow lost access to the master document containing those questions. This is the whole point about information being non-rivalrous.
Prosser (1960) identified four privacy torts, of which the first is intrusion upon seclusion. Intrusion overlaps with actions for trespass to land or chattels.
Floridi considers our personal information as constitutive of our very being. If personal information is finally acknowledged to be a constitutive part of someone’s personal identity and individuality, then one day it may become strictly illegal to trade in some kinds of personal information, exactly as it is illegal to trade in human organs (including one’s own) or slaves. (Luciano Floridi, 4th revolution)
What I need to think further about is the dynamic between individuals and society as a whole – whereby an invasion of one individual’s informational privacy is harmful to society as a whole.