The question of property rights in personal information—and who owns it—is a train that is picking up speed. Legislation recently considered in Wyoming suggests a growing American style of privacy protection through property rights and contract. The Wyoming outing has challenges, but the question of who owns all that personal information is going to get more attention.

For decades now, Europe has seemed “ahead” on privacy thanks to heavy-handed regulation. The US has preserved its tech sector by generally resisting the pitfalls of top-down regulation. But many states have ceded ground, about half adopting “Europe-lite” (sometimes quite heavy) regulations.

Meantime, about half of the states have also enacted or amended laws to treat digital records and data as personal property. (See this piece arguing against preempting those statutes.)

So: Regulation? Or property rights and markets?

The attraction of the Wyoming Personal Data Ownership Act is the title, which jibes with our intuitions: We don’t give away our data when we use online services. Sending a text doesn’t make it Verizon’s text. That Gmail to your doctor is not the property of the Alphabet corporation.

But the Wyoming bill is not oriented around property rights. The Software & Information Industry Association (SIIA) stated the problem well in a comment to Wyoming’s Select Committee on Blockchain, Financial Technology and Digital Innovation Technology: “While the bill borrows the language of property, it works as a detailed regulatory regime, and a far stricter one than any state has adopted.”

Even the best sometimes mistake regulatory rights for property rights. But a helpful rule of thumb is: If you can’t sell it, it’s not your property. The Wyoming bill says personal information is “not alienable, assignable or transferable during the data owner’s life.” Imagine if they did that to your car.

Property is like Legos. In a pile in front of you, you have your things. You can build something, trade them, share them, throw them away, sell them. Ownership is having the right to do whatever you want with your things. Someone who says what you can’t do, what you must do, or how to arrange your Legos is reducing your property rights.

The Wyoming bill is regulatory. Its 90+ pages try to boil the ocean of privacy problems. The bill gets absurd where it assigns categories of information to “tiers” of sensitivity.

Privacy demands differ and change. You might as well legislate on hairstyles, giving ample coverage to feathering.

Planners won’t solve privacy. Through billions of choices, consumers should design the economy and society, including its privacy practices.

New Hampshire legislation I’ve discussed previously compares favorably to Wyoming’s. It does not pretend to design society. It recognizes property rights in unpublished personal information, helping articulate a market.

The bill would create a presumption that a bailment exists when people hand their private (“unpublished”) information to a service provider. (“Bailment” is the property-law term for transferring possession but not ownership.) So when you share a Lego with a friend, it is still yours unless you are clearly making a gift of it, a trade, or a sale.

Bailment is always subject to contract terms, so the rule for business under New Hampshire’s approach is: “If it’s in your terms of service, you can do it.”

Among the gains for business and consumers in New Hampshire’s approach is control over industry being used as a conduit for excessive government surveillance. That is a matter of significant industry effort.

Growing recognition of personal information as property has risks for business, too—not regulatory risks, but the risk of getting on the wrong side of the public.

Consider these infelicitous lines in SIIA’s Wyoming comment: “Property law assumes that an item has an owner who can control it and sell it. Information about people rarely fits that model.”

SIIA member companies own substantial amounts of personal information. They paid good money and expended substantial effort to acquire it. SIIA should not argue that personal information is uniquely unownable—it isn’t.

But other positions are worse. As ownership grows in salience, failing to embrace it may put the tech industry in the position of claiming to own all the personal information they store.

That has happened before. In 2006, AT&T issued a privacy policy that claimed ownership of customer calling and Internet usage data. There was prompt push-back (SF Chron, WaPo). The company, recognizing an untenable position, quickly retreated.

The way forward here is forward. Personal information is property. Some personal information businesses rightfully and lawfully acquire, and some they hold in trust for consumers. Companies that aren’t getting clear on who owns the personal information they hold may be in a conceptual tunnel, and the light in the distance is a train.