Protecting Freedom and Engendering Trust: A Capability Approach to Data Rights

Personal data collection and processing is changing faster than the legal mechanisms and the social norms that should govern it, leading to violations of freedom and a deterioration of trust. The way data rights fit into existing institutions can preserve freedom and reap the benefits of information technologies. The history of social control through information processing and collecting points to the need for legislation to protect freedom. Although technology companies in the market are attempting to assuage fears about personal data misuse, their recommended practices will not sufficiently address data rights. The market’s emphasis on property rights does not address the challenges that data poses for ownership and consent. Additionally, the negative conception of privacy supported by technology companies is unfair, leading to suspicion of privacy-conscious individuals and requiring them to bear the heavy burden of policing personal data abuses. To counter the market trend, a data rights framework should enable trust in computing and allow individuals to pursue their conception of the good life without fear of abuse. The framework presented in this paper will (1) refocus discourse on how we can engender trust in data use so as to expand opportunity and (2) provide a mechanism for rights to contend with violations of freedom even as technology changes. Applying the framework will show that the European Union’s General Data Protection Regulation insufficiently addresses personal data protection by not considering issues imposed by data ownership, technological change, government abuse, and undue manipulation.Bachelor of Art