No one owns (car) data

Lothar Determann’s research paper “No One Owns Data” follows on the heels of his earlier (co-authored) seminal piece “Open Cars” and is a must read for anyone who is involved with IoT in general and connected cars & mobility in particular.

Determann’s analysis and perspective are extremely topical at a time where the imminent arrival of GDPR is sending digital shockwaves around Europe and is causing everyone, from startups to mega corporations, to get their “data house” in order. Ever the global expert, Determann’s analysis covers both the US and Europe and is helpful to any global fleet, mobility and technology provider or anyone else concerned about data.

Determann and his team of researchers do a fastidious job in analyzing existing ownership and property laws including real property, personal property, trade secrets, patents, trademarks, and copyright in search for a property right in data. From there they go on to the EU Database Directive and US state laws on misappropriation as well as EU and US data privacy laws. The latter analysis is especially illuminating as privacy laws are often misunderstood as conferring data property rights. Determann even debunks common interpretations of various state statutes on automotive event data recorders (“EDRs”) which, while containing “property law terminology,” are not designed to confer property rights to information itself.

See also: What you need to know about the FBI notification on electronic logging

The absence of data property rights as such, however, does not mean that there are no important data related rights; especially for car owners and drivers.

The absence of data property rights as such, however, does not mean that there are no important data related rights; especially for car owners and drivers. For starters, owners of data generating devices — most prominently cars — are protected from unauthorized access to “their” data under computer interference laws. Most car buyers, including fleet owners, will also be interested in data accessibility, safety features and interoperability to ensure competitive pricing and availability of data driven services such as brand-agnostic telematics and advanced fleet management technologies.

Fleets and other car buyers must be assertive, and express these expectations in their buying preferences and customer feedback to vehicle manufacturers; in addition they are able to appeal to consumer and competition supervisory bodies. Car owners are protected by “right to repair” statutes, environmental laws requiring independent emission tests, and general competition laws. This applies in particular where vehicle manufacturers would seek to favor their own competitive (data) service offering. Determann here points to a recent massive fine against an online search provider for offering an internet search service that allegedly favored its own content.

Based on the solid analysis of the legal status quo, Determann finally turns his attention to policy considerations going forward. He chastises various attempts by powerful players to create data monopolies and usher in a new era of data protectionism.

Based on a comprehensive analysis of interests — car owners, drivers & passengers, other traffic participants, vehicle manufacturers, add-on service providers, car dealer & distributors, insurance companies, law enforcement and government institutions — and data categories, he compellingly concludes that creativity and technological advances, freedom of information and speech, competition, and government use of data favor a decidedly “open” approach to data. The balance is provided by privacy laws which are much better positioned to protect human dignity and personal privacy than property laws (Determann here uncovers some potentially chilling albeit unintended consequences of data property rights).

Determann’s conclusion is clear: “No one owns or should own data as such.” This is a welcome and necessary clarification which frees us to focus on a much more pressing digital issue: data access.

There is no question that data has become the “fuel” and even “oxygen” of the digital economy; and thus access must follow the rules and principles of a free market economy with security and openness at its center.

There is no question that data has become the “fuel” and even “oxygen” of the digital economy; and thus access must follow the rules and principles of a free market economy with security and openness at its center. Businesses, from startups to global corporations, need data to compete, collaborate and innovate; governments, from federal agencies to smart communities, need data to transform infrastructure and service delivery; and individuals, in addition to the assurance that features and services protect their privacy and safety, need open data access to preserve their ability to choose. As a result, there has been much concern about players who use their market position to stake exclusive claims to data and boldly label data generated by others across the value chain as theirs.

Against this backdrop, it is imperative that policy makers recognize the importance of “open” data frameworks for connected transport that “[benefit] the entire automotive value chain and end users ... guarantee a level playing field and maximum security with regard to access and storage of in-vehicle data ... which should be fair, timely and unrestricted in order to protect consumer rights, promote innovation and ensure fair, non-discriminatory competition ....”*

This “open” access cannot and must not be taken for granted as one thing remains certain: While data may not be “owned” as a matter of law, it can be owned, controlled and restricted as a matter of fact. The question of who has access to data will decide whether the digital economy will work for the many and society at large or the few alone.

*Quoted from Recommendation 20 of the European Parliament adopting the Report on Cooperative Intelligent Transport Systems (C-ITS) on March 13, 2018.

More from this author:

Open cars: The future of transportation?

Protecting the lifeblood of value and innovation

Whose data is it anyway?