Privacy Property, Information Costs, and the Anticommons

Abstract

The current law of privacy is a hodgepodge of rights and remedies. Some rights arise out of a specific statute, others arise out of the general common law of torts and contract. Each system for protecting privacy has its own distinctive remedial scheme. Some rights are backed by public enforcement alone, some by private rights of action, some by both. Some come with compensatory damages, others with attorneys' fees, punitive damages, or statutory damages. Even where a private right of action exists, however, that right is often enforced by civil liability, rather than property-based entitlements. While this essay argues for property-based protection of personal data, its principle goal is to take seriously (and propose techniques for minimizing) the costs associated with the coordination problems created by a regime of information property.