Federal Court rules that Consumers have Property Rights in their Online Personal Information
In November 2020, Andrew Yang and The Data Dividend Project submitted a brief to the California Federal Court arguing that California consumers do have a property interest in their own online data. You can download the brief itself here.
April 9, 2021 FURTHER UPDATE on Data and Personal Property: As we reported previously, on March 17, 2021, Judge Koh ruled that Internet users have a property interest in their personal information, rejecting Google’s argument that users should have no property interest in their online data.
On April 1, 2021, Google filed a motion for reconsideration, asking the Court again to find that users lack property rights in their online data. Specifically, Google argued “that the Court did not address Google’s argument that the ‘personal information’ that Google allegedly misappropriated from Plaintiffs is not ‘property’ under California law because it is not capable of ‘exclusive possession and control’ by Plaintiffs . . . .”
On April 2, 2021, Judge Koh denied Google’s motion, standing with her original March 17 ruling.
UPDATE on Feb. 18 Court Hearing:
The California Federal Court held a nearly 2 hour hearing on Thursday Feb. 18 in the Calhoun v. Google case. Judge Koh asked numerous questions to both sides. One of the questions that Judge Koh asked focused on the issue of whether a consumer’s online data could be considered personal property under California law.
On March 17, 2021, Judge Koh issued her 39 page decision. In it, she held that there is a “growing trend” around the country to recognize that personal information has property value, and that California courts specifically “have also acknowledged that users have a property interest in their personal information.” Judge Koh noted further “that plaintiffs who suffered a loss of their personal information suffered economic injury.”
This ruling, together with the other recent ruling against Google on tracking while users are in Incognito mode, is bringing Americans closer and closer to the day where they can collectively demand data dividends from Big Tech and Data Brokers for the use and abuse of Americans’ online data.
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The Underlying Lawsuit against Google
However, that is simply not true according to the lawsuit; instead, “Google intentionally and unlawfully causes Chrome to record and send users’ personal information to Google regardless of whether a user elects to Sync or even has a Google account.” The lawsuit claims that Chrome would send to Google a Chrome user’s browsing history, unique browser identifiers, unique cookie identifiers, and IP addresses. According to the plaintiffs’ lawyers, “Google’s actions constitute rank theft. Plaintiffs’ [personal information] is a form of property recognized under California law and has economic value in the marketplace.”
In response, Google filed a motion to dismiss in October 2020. Among other arguments, Google claimed that “the Data that Google allegedly ‘stole’ is not ‘property.’”
Andrew Yang and DDP’s “Amicus” Brief
Enter Andrew Yang and the Data Dividend Project. In November 2020, through its lawyers, Andrew Yang and DDP submitted an amicus brief—or “friend of the court” brief—to the California Federal Court. The sole argument made by Andrew Yang and DDP was that the California Constitution (and California laws like the California Consumer Privacy Act and the California Privacy Rights Act) confirm that Californians do, in fact, have a property interest in their own data.
The Feb. 18th Hearing
The California Federal Court granted oral argument. The hearing will be held on Thursday, February 18, 2021, at 1:30pm PT (4:30pm ET). You can listen to the oral argument here: www.youtube.com/user/USDCCAND (under Federal Court rules, this cannot be recorded or rebroadcast).
While the Judge may not end up ruling on this particular issue, we believe that the chances are good that she will at least address whether your online data should be your property.
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