Private Law Theory

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 …

Harper, Jim, Personal Information is Property (January 11, 2024).