Personal Information is Property

Abstract

Over the recent half-decade of privacy concern, the dominant intellectual and scholarly approach to privacy in the United States has been in the civil law tradition, assuming that statute law and regulation would provide the rules. When legal thinkers of an economic bent pondered “propertizing” information at the dawn of the Internet era, they remained in the civilian mold, as most envisioned designing a property regime for personal information. Meanwhile, information has acquired the characteristics of property in the common law sense. 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 that are in the “bundle of sticks” that make up property rights.

This article defines information and personal information for the purposes of legal administration, then shows how online service providers’ contract terms divvy up property rights in the information shared and created in the course of their relationships with customers. These contracts generally give the right to possession and use of this information to the service provider while keeping the right to exclude others, on the whole, with the consumer.

These contracts do not create mere rights between parties. They have as their subject matter an item of property in which people have a right against the world. U.S. Supreme Court cases validate this view, as do state supreme courts. The Supreme Court has treated information as property in the common-law sense and contracts as allocations of property rights. Select state supreme courts have recognized information as property subject to conversion actions. In several respects, recognizing information as property protects consumers and enhances their rights vis a vis both service providers and third parties

Common treatment of personal information squares with a number of property theories, and parallels can be observed between the development of property rights in real property in pre-history, property rights in movables historically, and property rights in information in the present day.

 
A number of concerns and challenges stem from recognition of information as property. One springs from the pitfalls of designing a property rights regime, which common law recognition does not do. Recognizing property rights in information does not imply that all property is owned; conventional property theory provides the dividing line between owned and unowned information. The threats to free speech that could arise from recognition of property rights in information are real, but courts can police the appropriate line between people’s information and others’ capacity to access and take it.

Keywords: privacy, information, personal information, common law, property, property law, legal theory

JEL Classification: K11, K12