Portability, not Doctrine, is Key to Unlock User Agency for Data

Data is of central importance for users of digital services, and for many years has been the subject of significant attention in the realm of public policy. In the context of the historical common law doctrine of essential facilities, little wonder that many scholars have looked at data. But this is a poor choice of path. Digital data is both created and used within specific contexts, and its value derives from its use within contexts. Looking at personal data through the blunt lens of the essential facilities doctrine risks losing those contexts, and will struggle to reach an effective public policy balance, including taking into proper account privacy considerations. Meanwhile, there have been significant advancements in data portability for personal data, including both greater product offerings and more well-developed public policy principles and understandings. As public policy frameworks for data portability continue to develop, this article will offer some principles to guide those conversations to reinforce and strengthen the efficacy of data portability as a paradigm for governing personal data.

By Chris Riley^[1]

I. INTRODUCTION

Data is of central importance for users of digital services, and for many years has been the subject of significant attention in the realm of public policy. Some argue that the common law doctrine of essential facilities that has traditionally been applied to physical infrastructure in transportation, energy, and telecommunicat