Information Brokers, Fairness, and Privacy in Publicly Accessible Information
| Author | Andrea Slane |
| Position | Associate Professor in Legal Studies, University of Ontario Institute of Technology |
| Pages | 249-291 |
Information Brokers, Fairness,
and Privacy in Publicly Accessible
Information
Andrea Slane*
e European Union, Canada, and the United States have each grappled with what
counts as fair business practices in relation to information services that collect and
package personal information that has ended up in one way or another online. On
the open internet, this personal information often originates from two types of online
sources: public records like arrests, mugshots, court decisions, and bankruptcy records;
and user-generated content hosted on social media platforms and sites. is article
argues that personal information that has been exposed to public view — be it by a
government institution, another individual or organization, or by the data subject him
or herself — should not be considered fair game to any and all subsequent commercial
exploitation. e blunt concept of “public” information should be rened to a more
nuanced understanding of “publicly accessible” information, where public access can be
limited to particular purposes.By focusing on fairness in business dealings in publicly
accessible personal information, it should be possible to move beyond a xation on
locating the elusive divide between private and public online information, and instead
frame privacy as situated in a three-way balance of interests between the business, the
public, and the data subject.
* Andrea Slane, PhD, Associate Professor in Legal Studies, University of
Ontario Institute of Technology, Oshawa, Ontario: Andrea.slane@uoit.ca.
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Slane, Information Brokers, Fairness and Privacy in Publicly Accessible Information
I. I
II. T EU’ “R B F” R C
E P I O
III. U F R B F A P
D T I C P
IV. B F P U-G C
V. V C: W O P I B P
P C
VI. P A ≠ F T
VII. C: D P “P”
I. Introduction
In the last decade, online information brokers have come under
increasing scrutiny from regulators in the European Union, Canada,
and the United States. Each jurisdiction has grappled with where to
draw the line regarding what kind of business practices are fair in each
regime, especially where online businesses provide an information service
that includes the collection and packaging of the personal information
of individuals whose information has ended up in one way or another
online. A comparison of these efforts reveals important variations and
policy options, but also some common ground. is article explores these
options and the decisions jurisdictions make to restrain the otherwise
unimpeded flow of online personal information through information
brokers.
Finding appropriate ways to regulate the way personal information
flows through commercial business models is necessary, because the
choices we make have implications for general commercial fairness in
data processing. In particular, it is important to focus on privacy in
publicly accessible personal information, since so much personal data
is now generated from “public” online activity. is article will focus
on recent legal and regulatory developments in the EU, Canada, and
the US that deal with information products and services that collect,
process, and package publicly accessible personal information. On the
open internet, this personal information often originates from two types
251
(2018) 4 CJCCL
of online sources: public records (like arrests, mugshots, court decisions,
and bankruptcy records) and user-generated content hosted on social
media platforms and sites.
Personal information that has been exposed to public view — be
it by a government institution, another individual or organization, or
by the data subject him or herself — should not be thought of as fair
game to any subsequent commercial exploitation. e blunt concept of
“public” information should be refined by shifting to a more nuanced
understanding of “publicly accessible” information, where public access
to that information can be limited to particular purposes. Each of
the three jurisdictions has been engaged in determining what are fair
purposes for accessing and subsequently exploiting personal information
for commercial gain, albeit in their own distinct ways.
e concept of fairness permeates attempts to restrain commercial
exploitation of publicly accessible personal information online. Fairness
in business practices as they apply to individuals — whether they be
customers or members of the broader public — governs the balance
between the value we place in entrepreneurialism and the free market, the
right of the public to the benefits provided by those business practices,
and the rights of data subjects to be sheltered from certain types and
magnitudes of informational harm. By focusing on fairness in business
dealings in publicly accessible personal information, it should be possible
to move beyond a fixation on locating the elusive divide between private
and public online information, and instead frame privacy as situated in
a three-way balance of interests among the business, the public, and the
data subject.
In the US, efforts to articulate and manage the legitimate flow
of personal information online have been spearheaded by the Federal
Trade Commission (“FTC”), in particular its enforcement of fair credit
reporting obligations and its intervention in unfair and deceptive
business practices. In the EU and Canada, these efforts are rooted in
data protection regimes that are intended to enforce fair information
practices. is article compares how each of the three jurisdictions are
working to determine to what extent, and how, existing consumer or
data protection regimes should limit the commercial exploitation of
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