Muddy Property: Generating and Protecting Information Privacy Norms in Bankruptcy

Abstract:     
In this article I examine the treatment of e-commerce privacy policies in bankruptcy, and seek to show that recent proposals by Larry Lessig and others to protect data privacy through propertization, as well as legislative proposals which follow Lessig's lead, are legally and intellectually incoherent for a common reason. Both Lessig and Congress focus on remedy, without paying sufficient attention to the institutional mechanisms for generating the substantive privacy norms at stake in e-commerce transactions. At the same time, privacy scholars who are critical of Lessig oppose propertization and focus instead on the creation of privacy entitlements through public processes. Lessig's critics ignore, however, the fact that without the status of property, these rights will receive no protection in bankruptcy.

To bridge this gap, I propose a regime of muddy property rules based on fair information practices (or "FIPs") that can simultaneously protect against the commodification of personal information and offers bankruptcy courts as a public forum for articulating and enforcing privacy norms.

Accepted Paper Series