Personal Information Is Property.

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 administrative 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, not inding one, as judges do in the common law tradition. 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 in the "bundle of sticks" that make up property rights. It is time to recognize that important development. After reviewing legal scholarship in this area, this article defines information and personal information for the purposes of legal administration. Then it 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. These contracts do not create mere rights between parties. They have as their subject matter an item of property in which people have a right against the world. U.S. Supreme Court cases validate this view, as do state supreme courts. America's highest Court has treated information as property in the common-law sense and contracts as allocations of property rights. Select state supreme courts have recognized information as property subject to conversion actions. It is a widely held premise in federal appeals court actions dealing with information that the thing at issue is property, even while the primacy of statute law has deflected courts from finding directly that information is property according to common law. In several respects, recognizing information as property protects consumers and enhances their rights vis a vis both service providers and third parties. Common treatment of personal information as property squares with a number of property theories. Parallels can be observed between the pre-historic development of property rights in land, property rights in movables historically, and property rights in information in the present day. A number of concerns and challenges stem from recognition of information as property. One springs from the pitfalls of designing a property rights regime, which common law recognition does not do. Recognizing property rights in information also does not imply that all property is owned; conventional property theory provides the dividing line between owned and unowned information. Diminution of speech could result from recognition of property rights in information, but the First Amendment does not create a right to take others' information. Courts can police the appropriate line between people's information and others' capacity to acquire and use it. [ABSTRACT FROM AUTHOR]