Privacy as property - Part V: Democratic Process and Nonpublic Politics

Social Research, Spring, 2002 by Lawrence Lessig

(1) To promote property talk is not to promote anarchism, or even libertarianism. "Property" is always and everywhere a creation of the state. It always requires regulation to secure it, and regulation requires state action. The DMCA is a law designed to protect what most think of as "property." That is regulation. Police are deployed to protect property. That too is regulation. Zoning laws regulate and control property. Rules regulating the market control how property is exchanged. And rules establishing privacy as property would govern when and how a privacy right can be traded. Property is inherently the construction of the state; and to confuse the promotion of property with the promotion of laissez-faire is to fall into the vision of the world that libertarians delude themselves with. There is no such thing as property without the state; and we live in a state where property and regulation are deeply and fundamentally intertwined.

(2) Although property is often resisted by liberals because of the inequality that property systems produce, privacy as property could create less extreme inequality. If the privacy as property system were properly constructed, it would be less troubling from this perspective than, say, copyright or ordinary property. For if the law limited the ability to alienate such property completely--by permitting contracts about, for example, secondary uses but not tertiary uses--the owner of this property would be less likely to vest it in others in ways that would exacerbate inequalities.

(3) Property talk is often resisted because it is thought to isolate individuals. It may well. But in the context of privacy, isolation is the aim. Privacy is all about empowering individuals to choose to be isolated. One might be against the choice to be isolated; but then one is against privacy. And we can argue long and hard about whether privacy is good or not, but we should not confuse that argument with the argument that property would better protect any privacy we have agreed should be protected.

(4) To view privacy as property is not to argue that one's rights to use that property should be absolute or unregulated. All property law limits, in certain contexts, the right to alienate; contract law restricts the contexts in which one can make enforceable contacts. The state has a valid and important role in deciding which kinds of exchanges should be permitted. And especially given the ignorance about the Internet that pervades the ordinary user's experience, I would be wildly in favor of regulation of what people were allowed to do with "their property." Indeed, I imagine there is no legislative recommendation of the Electronic Privacy Information Center (EPIC), for example, for regulating privacy that I would oppose (see (http://www.epic.org)).

Thus, to promote property talk is not to demote the role of regulation, or to believe that the "market will take care of itself," or to question the strong role the government should have to assure privacy. It is simply to recognize that the government is not the only, or often, most important protector of human rights. And that where norms can carry some of the water, my argument is that we should not be so quick to condemn these norms.