Personal data property rights as privacy solution. Re: Cofone, 2017

by Sebastian Benthall

I’m working my way through Ignacio Cofone’s “The Dynamic Effect of Information Privacy Law” (2017) (link), which is an economic analysis of privacy. Without doing justice to the full scope of the article, it must be said that it is a thorough discussion of previous information economics literature and a good case for property rights over personal data. In a nutshell, one can say that markets are good for efficient and socially desirable resource allocation, but they are only good at this when there are well crafted property rights to the goods involved. Personal data, like intellectual property, is a tricky case because of the idiosyncrasies of data–its has zero-ish marginal cost, it seems to get more valuable when it’s aggregated, etc. But like intellectual property, we should expect under normal economic rationality assumptions that the more we protect the property rights of those who create personal data, the more they will be incentivized to create it.

I am very warm to this kind of argument because I feel there’s been a dearth of good information economics in my own education, though I have been looking for it! I do believe there are economic laws and that they are relevant for public policy, let alone business strategy.

I have concerns about Cofone’s argument specifically, which are these:

First, I have my doubts that seeing data as a good in any classical economic sense is going to work. Ontologically, data is just too weird for a lot of earlier modeling methods. I have been working on a different way of modeling information flow economics that tries to capture how much of what we’re concerned with are information services, not information goods.

My other concern is that Cofone’s argument gives users/data subjects credit for being rational agents, capable of addressing the risks of privacy and acting accordingly. Hoofnagle and Urban (2014) show that this is empirically not the case. In fact, if you take the average person who is not that concerned about their privacy on-line and start telling them facts about how their data is being used by third-parties, etc., they start to freak out and get a lot more worried about privacy.

This throws a wrench in the argument that stronger personal data property rights would lead to more personal data creation, therefore (I guess it’s implied) more economic growth. People seem willing to create personal data and give it away, despite actual adverse economic incentives, because cat videos are just so damn appealing. Or something. It may generally be the case that economic modeling is used by information businesses but not information policy people because average users are just so unable to act rationally; it really is a domain better suited to behavioral economics and usability research.

I’m still holding out though. Just because big data subjects are not homo economicus doesn’t mean that an economic analysis of their activity is pointless. It just means we need to have a more sophisticated economic model, on that takes into account how there are many different classes of user that are differently informed. This kind of economic modeling, and empirically fitting it to data, is within our reach. We have the technology.


Cofone, Ignacio N. “The Dynamic Effect of Information Privacy Law.” Minn. JL Sci. & Tech. 18 (2017): 517.

Hoofnagle, Chris Jay, and Jennifer M. Urban. “Alan Westin’s privacy homo economicus.” (2014).