ABSTRACT
This Essay exposes how contracts have come to facilitate property rights in almost unbounded fashion. In the absence of public regulation for new technologies, contracts rule. They are the glue that cements ownership rights and fill any gaps left bare by the absence of government regulation. As a result, private law has become the de facto regulatory framework for new technologies that rely extensively on data resources. More specifically, the way in which contract law and intellectual property law have coalesced to define and control data ownership is striking. It is property ownership that allocates control of and access to data resources and ultimately enables monetization and value in the marketplace. This control extends to both the public and private sphere, and the attendant implications are far reaching. The Essay offers three illustrative examples of unregulated spaces (implantable medical devices, facial recognition technology, and algorithmic models in the criminal justice system) where access and ownership rights are governed almost exclusively by private law, despite the public interests that may be implicated in these areas. While having a private law-dominated scheme that leaves discretion to market participants might have benefits, including efficiencies, the Essay probes the implications for the public interest and public law values, particularly with respect to public-private technology transactions.
Rowe, Elizabeth A, Private Law in Unregulated Spaces (March 2024), New York University Law Review, Forthcoming.
Leave a Reply