Part 3: Establishing the personal-information contract
A contract controlling the provision by individuals of their personal information in exchange for services of commensurate value protects the interests of both parties. Such a contract creates opportunities for service providers: they may negotiate for even more detailed personal information than they currently collect from their customers who choose to maximize the value of the services or other consideration they receive in return. Many consumers would gladly trade their private data for valuable consideration, especially if they are confident they can pause or terminate the collection on demand.
The personal information may be more valuable to data collectors because the people it pertains to can correct and otherwise enhance the data. This introduces the possibility that some of the information consumers supply about themselves wouldn't be accurate. Even though consumers are obliged to provide accurate information about themselves, the consequences of mistakenly or intentionally providing inaccurate information are uncertain. How would data collectors prove damages as a result of the consumer's breach? Data collectors are best able to authenticate the information they collect by cross-referencing it with information about the person they receive from other sources.
Once they enter into a personal-information contract, individuals would receive their complete profile on a regular basis after the information has been collected and used by the collector. Consumers can be truly informed only after the fact about the personal information being collected, how it is used, and who it is shared with. Enforcement and cancellation of the contract would likewise by after-the-fact: either party could cease the collection on demand, and consumers could express an intent to prevent future use of their information. (The nature of information sharing suggests that it would be nearly impossible to "erase" or otherwise prevent all reuse of the information. However, it could be argued that the value of the "locked" personal information to data collectors and third parties diminishes rapidly as it ages.)
Applying contract principles to personal-information transactions addresses the current absence of clear legal protections for unauthorized collection and misuse of individuals' personal information.
A. Action under trespass to chattels
The personal information may be more valuable to data collectors because the people it pertains to can correct and otherwise enhance the data. This introduces the possibility that some of the information consumers supply about themselves wouldn't be accurate. Even though consumers are obliged to provide accurate information about themselves, the consequences of mistakenly or intentionally providing inaccurate information are uncertain. How would data collectors prove damages as a result of the consumer's breach? Data collectors are best able to authenticate the information they collect by cross-referencing it with information about the person they receive from other sources.
Once they enter into a personal-information contract, individuals would receive their complete profile on a regular basis after the information has been collected and used by the collector. Consumers can be truly informed only after the fact about the personal information being collected, how it is used, and who it is shared with. Enforcement and cancellation of the contract would likewise by after-the-fact: either party could cease the collection on demand, and consumers could express an intent to prevent future use of their information. (The nature of information sharing suggests that it would be nearly impossible to "erase" or otherwise prevent all reuse of the information. However, it could be argued that the value of the "locked" personal information to data collectors and third parties diminishes rapidly as it ages.)
Applying contract principles to personal-information transactions addresses the current absence of clear legal protections for unauthorized collection and misuse of individuals' personal information.
A. Action under trespass to chattels
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