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Vanderbilt Law Review

Steven Hetcher

First Page

2041

Abstract

This symposium explores the economic approach to intellectual property law. This Article concerns a particular type of intellectual good-personal data. Personal data is an increasingly important topic because of its connection to the issue of Internet privacy, which has recently taken center stage in the public policy arena.

Boiled down to its core, the Internet privacy debate is a debate about who should control personal data-Internet users (data subjects) or websites. The scope of website data collection practices is expanding dramatically, due in large part to technological advances such as cookies, Web-crawlers, and Web-cams. If Internet users are unable to exert control over this growing use of their data by commercial entities, their personal privacy will be increasingly diminished. One proposed solution to the growing privacy problem is to grant people intellectual property rights in their personal data. Rights of this sort would, however, create tension with other principles of intellectual property law. Furthermore, property rights in personal data also raise First Amendment concerns.

Thus far, new attempts to regulate personal data have stopped short of granting property in this data. Instead, the Federal Trade Commission ("FTC"), the leading regulator of personal data up to the present time, has proceeded by means of protecting user control, as opposed to ownership, of the user's personal data. In particular, the FTC has attempted to provide visitors to websites with greater control over the circumstances under which their data is collected and used by websites. The FTC's main means to accomplish this is to promote the use of so-called "privacy policies" or "privacy statements" by websites. The FTC has met with a fair degree of success in encouraging websites to adopt privacy policies. In the past few years, the percentage of websites that offer privacy policies has gone up significantly.

Nevertheless, the FTC's efforts have been met with skepticism from the well-organized, public-interest advocacy community that is active in promoting greater electronic privacy protection.

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