A Real-Property Model of Privacy

Abstract

Privacy has been a significant subject of scholarly attention for decades, but it has never been more confusing than it is today. As myriad social pressures inexorably corral an ever-growing share of the world’s population down the digital rabbit hole, more and more people become both users and targets of new technologies. The complexity of these technologies and their unprecedented interactions with one another have completely outstripped the ability of the populace as a whole to understand the privacy implications of our new and shifting reality. Confronting privacy questions in this context is all but paralyzing.

This Article offers a new framework for conceiving of privacy and privacy rights, which simplifies privacy questions in a hopelessly complex environment and provides a basis for strengthening privacy rights. That framework is built on a realist view of property rights, which serves the critical analogical functions of clarifying our relationship to our privacy interests, and offering steadying guidance for addressing privacy questions that appear blurred by rapid technological advancement. It is both notable and counterintuitive that to modernize our theoretical understanding of privacy may require us to embrace a model built on the real-property regime, which is classically characterized by its adherence to long-standing, even arcane, common-law rules.

Keywords: Privacy, Property, Carpenter v. United States, Gorsuch