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2018 Jotwell: J. Things We Like 1 (2018)

handle is hein.journals/jotwell2018 and id is 1 raw text is: Technology Law The Journal of Things We Like (Lots) https://cyber.jotwell.com Money For Your Life: Understanding Modern Privacy Author : Michael Madison Date : January 8, 2018 Stacy-An n ElIvy, Payina for Privacy and the Personal Data Economy17Cou.LRe.36(27) StacyAnn lvy,, 117 Colum. L. Rev. 1369 (2017). The commercial law of privacy has long occupied a relatively marginal place in modern legal scholarship, situated in gaps among doctrinal exposition, critical conceptual elaboration, and economically-motivated modeling. Much of the explanation for the omission is surely technological. Until Internet technologies came along in the mid-1 990s, it was difficult to turn private information into a thing that was both technically and economically worth buying and selling. Technology and markets have passed the point of no return on that score. Claude Shannon, credited as the author of the insight that all information can be converted into digits, has met Adam Smith. Yet relevant legal scholarship has not quite found its footing. Paying for Privacy and the Personal Data Economy, from Stacy-Ann Elvy, offers a novel way forward. Professor Elvy's article offers a nifty, highly concrete, and eminently useful framework for thinking about the commercial law of things that consist of assets derived from consumers' private information. It is not only the case that commercial law is one of the legally-relevant attributes of privacy and privacy practices. Privacy can be thought of as a mode of commercial law. Paying for Privacy lays out its argument in a series of simple steps. It begins with a brief review of the emergence of the now-familiar Internet of Things, network-enabled everyday objects, industrial devices, and related technologies that increasingly permeate and collect data concerning numerous aspects of individuals' daily lives. That review is pertinent not merely to common claims about the urgency of privacy regulation but also and more importantly to the premise that the supply of data-collecting technologies by industry (with accompanying privacy-implicating features) is likely to lead soon to increased demand by consumers for privacy-mediating, privacy-regulating, and privacy-protecting instruments. The supply/demand metaphor is purposeful, if somewhat speculative, for it leads to a thorough and useful description and taxonomy of instruments currently on offer. Those include traditional privacy models involving personal data traded for free services (such as Facebook) and freemium services (such as Linkedln) that offer both subscription- based and free versions of their services, harvesting money from subscribers (and advertisers and partners) and money and data from the free users. More recent PFP or Pay For Privacy models include newer firms offering multiple versions of pay for privacy services. Those include privacy as a luxury, in which providers offer added privacy controls for users in exchange for higher payments, and privacy discounts, by which users get cheaper versions of services if they agree to participate in data monitoring and collection. Switching perspectives from the service to the consumer yields a series of models collected as the PDE, or Personal Data Economy. Those include the data insights model, companies that enable individual consumers to monitor and aggregate private information about themselves, perhaps for their own use and perhaps to monetize by offering to third parties. In the related data transfer model, companies broker markets in which consumers voluntarily collect and contribute data about themselves, making it available for transfer (typically, purchase) by third parties. The taxonomy is only a snapshot of current practices. This field seems to be so dynamic that inevitably many of the details in the article will be superseded, no doubt sooner rather than later. But the taxonomy helpfully reveals the two- sided character of privacy commerce. Rounding out that basic insight, one might add that there are privacy sellers and privacy buyers, privacy borrowers and privacy lenders, privacy principals and privacy agents, privacy capital and privacy debt, privacy currency and privacy assets. There are secondary markets and tertiary markets. As Professor Elvy notes, the list of privacy intermediaries includes privacy ratings firms - firms that play much the same role as the 1/2

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