Information Privacy/Information Property

Abstract

From most objective standpoints, protecting information privacy though industry self-regulation is an abject failure. The current political climate has been hostile to proposals for meaningful privacy regulation. Privacy advocates have been casting around for some third alternative and a number of them have fastened on the idea that data privacy can be cast as a property right. People should own information about themselves, and, as owners of property, should be entitled to control what is done with it. The essay explores that proposal. I review the recent enthusiasm for protecting data privacy as if it were property, and identify some of the reasons for its appeal. I examine the model and conclude that a property rights approach would be unlikely to improve matters; indeed, it would tend to encourage the market in personal data rather than constraining it. After critiquing the property model, I search for a different paradigm, and explore the possibility that tort law might support a workable approach to data privacy. Current law does not provide a tort remedy for invasion of data privacy, but there are a number of different strands in tort jurisprudence that might be extended to encompass one. In particular, a rubric based loosely on breach of confidence might persuade courts to recognize at least limited data privacy rights. I conclude, however, that while the tort solution is preferable to a property rights approach, it is likely to offer only modest protection. Common law remedies are by their nature incremental, and achieving widespread adoption of novel common law causes of action is inevitably a slow process. Even established common law remedies, moreover, are vulnerable to statutory preemption. Although a rash of state tort law decisions protecting data privacy might supply the most compelling impetus to federal regulation we are likely to achieve, the resulting protection scheme is unlikely to satisfy those of us who believe that data privacy is worth protecting.