The outer edge of absurdity in the 1970s Monty Python sketch comedy show may have been “The Larch.” For no evident reason, the sketch retrains viewers on larch trees and the subject of larches. An interview with Pythons dressed as schoolboys goes into the larch question at some length, ending in a hard-to-hear introduction to the better-known “Nudge Nudge” sketch.
I get larch-like monomania when I argue that information has taken on the characteristics of property in the common law sense. “Doing that would be a bad idea,” goes the typical response. Though I try to point out the horse chestnut tree in people’s present-day treatment of information as property, people seem always to perceive me as proposing a change in the law, a larch.
This blog has seen more than a little dialogue about the treatment of information as property in our modern economy. Start with the salient critique of manufactured property rights my colleague Mark Jamison issued in 2019. I agreed with him, pointing out the important difference between manufacturing a property right and finding property in people’s actions and beliefs, which is how the common law we inherited from England operates. A year later, I posted situating people’s behavior in contract and property law, deeper research ongoing in the background. And I have written one or two (or three or four or five or six) times since then. All this culminates in a law review article I published last fall entitled “Personal Information Is Property.”
I invited a trio of experts to test my thesis at a very enjoyable AEI event, “Propertizing” Privacy: Evaluating the Merits of a Property-Based Approach to Personal Data Protection. Listen to it at the gym or in the car.
My article gives several forms of evidence that people and courts are treating information as common law property, including:
- The Supreme Court’s treatment of information as common law property in Ruckelshaus v. Monsanto, a Fifth Amendment Takings Clause case, and Carpenter v. United States, a 1987 case interpreting the mail and wire fraud statutes (not the 2018 cell phone data case);
- Broadly consistent use in federal appellate courts of the word “stolen” to refer to purloined information, theft being a property crime;
- The actual practice of trading information, hoarding, subdividing, reprocessing for profit, and so on, all activities that square with property theory and ownership; and
- The use of the word “your” in privacy policies and in general—not a clear statement of property rights, because it can mean “closely associated with you,” but possessive pronouns are what we use to indicate property ownership.
My article includes a survey of scholarship in this area over time. Many privacy law professors resist the property construct because it would validate information trade that runs contrary to their anti-commercial preferences. But it’s not only the privacy law scholars fighting “commodification” who are skeptical of property rights in information.
Among many others is AEI gem Will Rinehart. Will ably testified at a Senate Banking Committee hearing on data ownership in 2019. His arguments against instituting an ownership regime like the one I describe included the following points:
- A property right to personal data isn’t needed to establish consumer privacy rights and wouldn’t be efficient;
- Valuing personal data is difficult because its value depends heavily on context; and
- Through property rights or otherwise, privacy laws will create unavoidable compliance costs, reducing investment across industries.
Did you notice the shift in context? My argument is that this is what people and courts are doing. Will’s—which I think is in the mainstream—is that it would be unwise for us to create this regime.
Look at the chestnut tree! Ah, the larch.
In other contexts, I have been chary of pushing common law developments too far too fast. I have written skeptically of a phalanx of new and arguable “privacy harms.” The Supreme Court isn’t big on new privacy harms either. My failings may include self-absorption so intense that when I do the exact same thing I have criticized in others, I think it’s a brilliant intellectual insight. My hope is that evidence of people’s current actions and beliefs is something different than only arguing that things ought to go the way I prefer.
I think what I’m onto here is a real chestnut, not a larch. I am fascinated that it seems to meet roughly with the question, “That may work well in practice, but how does it work in theory?”
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