Harmed While Anonymous

Beyond the Personal/Non-Personal Distinction in Data Governance

Abstract

Data law and policy assume that harms to individuals can result only from personal data processing. Conversely, generation and use of non-personal data supposedly create new value while presenting no risk to individual interests or fundamental rights. Consequently, the law treats these two categories differently, constraining generation, use, and sharing of the former while incentivizing the latter. This article challenges this assumption. It proposes to divide data-related harms into two high-level categories: unwanted disclosure and detrimental use. It demonstrates how personal/non-personal data distinction prevents unwanted disclosure but fails to capture, and unintendedly enables, detrimental use of data. As a remedy, the article proposes a new concept – data about humans – and illustrates how it could advance data law and policy.