Can treating information as a form of property empower people to protect privacy using their property rights? Consider the following two quotes:
Consumers and businesses—each in their way and for their purposes—withhold or hoard personal information, trade it, process it, profit from it, and enjoy other rights to personal information in the “bundle of sticks” that make up property rights. It is time to recognize that important development.
And:
Beyond its impracticality, treating personal information as property belonging to the data subject is unsound in principle, notwithstanding the widespread habit of referring to personal information as “my data.” Privacy laws that attempt to create sticky privacy interests in personal data are not merely impractical. They are also incompatible with the philosophy of property rights.
Privacy has arrived at an impasse as stark and unwavering as Dr. Seuss’s “The Zaks.” Recall two characters, one going north and one south, on the same path. “Where they bumped! And they stood. Foot to foot. Face to face.”
With US federal privacy legislation just around the corner for decades now, developments elsewhere are guiding the development of privacy law and privacy itself. One path has been privacy protection through market processes. In it, consumers shun and shade their use of services that don’t meet their needs. (In the view of experts, they demonstrate ignorance and indifference in doing so.) The terms they broadly negotiate with service providers are contracts that allocate property rights in personal information. So argues ho-hum legal scholar yours truly in an immediately forthcoming Kansas Law Review article, “Personal Information is Property.”
The other path has been legislation and regulation in other jurisdictions—Europe and California, for example—where property rights accorded to consumers have created pretzel-shaped regulation of the technology sector. That’s Jane Bambauer, Brechner Eminent Scholar and professor of law at the University of Florida, in her recent Yale Law Journal Forum essay, “How to Get the Property Out of Privacy Law.”
Who’s right? We’re going to find out!
In the morning on Monday, December 10, AEI will host an event titled “‘Propertizing’ Privacy: Evaluating the Merits of a Property-Based Approach to Personal Data Protection.” Professor Bambauer and I will discuss our perspectives and take comment from two excellent commentators.
Adam MacLeod is a professor of law at the St. Mary’s University School of Law and a senior research fellow at the Center for Religion, Culture and Democracy, as well as a lecturer in the James Madison Program’s summer seminar on the moral foundations of law at Princeton University. He is an excellent scholar of property law and common law generally, and he will take us to school on property and property rights.
James Cooper is a professor of law at the Antonin Scalia Law School at George Mason University and Director of the Program on Economics & Privacy. A former deputy director in the Federal Trade Commission’s Bureau of Consumer Protection and a widely read and published expert, Cooper knows the economics of privacy protection as well as or better than anyone. He will take us to school a different way.
My prediction, of course, is that the merits of recognizing information as property will be clear and acclaimed by all at the end of the session. But that is what I would say, having spent years honing my argument and believing without evidence that I can be widely persuasive.
More likely, we will all learn a great deal about the fundamentals of property, the economics of privacy, and how these concepts may weave together to achieve higher levels of understanding in a complex policy area.
The discussion may show that the path forward for US privacy legislation is much like the path blocked by each of the Zaks. We will know what privacy legislation should not do, which is devise highly regulatory privacy-property rights. Those contraptions block innovation and progress without coordinate gains in privacy or other important social values.
And we will know that the US federal government is not the only source of law. State common law, including property law, is a wonderfully versatile social tool that can surpass the privacy problem so many believe is solved only by legislatures.
Register here to attend in person or watch online on Monday, December 9, from 9:00 to 11:00 a.m.
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