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68 Buff. L. Rev. 559 (2020)
Data Management Law for the 2020s: The Lost Origins and the New Needs

handle is hein.journals/buflr68 and id is 575 raw text is: Buffalo Law Review VOLUME 68 APRIL 2020 NUMBER 2 Data Management Law for the 2020s: The Lost Origins and the New Needs PRZEMYSLAW PALKAt In the data analytics society, each individual's disclosure of personal information imposes costs on others. This disclosure enables companies, deploying novel forms of data analytics, to infer new knowledge about other people and to use this knowledge to engage in potentially harmful activities. These harms go beyond privacy and include difficult to detect price discrimination, preference manipulation, and even social exclusion. Currently existing, individual-focused, data protection regimes leave law unable to account for these social costs or to manage them. This Article suggests a way out, by proposing to re-conceptualize the problem of social costs of data analytics through the new frame of data management law. It offers a critical comparison of the two existing models of data governance: the American notice and choice approach and the European personal data protection regime (currently expressed in the General Data Protection Regulation). Tracing their origin to a single report issued in 1973, the Article demonstrates how they developed differently under the influence of different ideologies (market-centered liberalism, and human rights, respectively). It also shows how both ultimately failed at addressing the challenges outlined already forty-five years ago. To tackle these challenges, this Article argues for three t Research Scholar at Yale Law School, Fellow in Private Law at Yale Law School Center for Private Law and a Resident Fellow at the Information Society Project at Yale Law School. For invaluable comments and conversations, I thank Daniel Markovits, Jack Balkin, Filipe Brito Bastos, Julie Cohen, Nikolas Guggenberger, Johan Fredrikzon, Claudia Haupt, Agnieszka Jablonowska, Thomas Kadri, Bonnie Kaplan, Kate Klonick, Hans Micklitz, Giovanni Sartor, Rory van Loo and participants in the YLS ISP Writers' Workshops in January and July 2019, and the 8th Annual Conference of the Younger Comparativists Committee (YCC) at McGill University Faculty of Law in May 2019. 559

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