In recent years, there has been considerable discussion about the definition and nature of privacy, including discussion of whether it merely holds instrumental value (is valuable merely because of its relationship to other values), or whether it has intrinsic value (see, e.g., Moor, “Toward a Theory of Privacy for the Information Age,” Computers and Society Vol. 27, No. 3 (September) 1997: 27-32.)   Further, those seeking to justify privacy rights have considered whether it stems primarily from a right to “freedom” and “autonomy” (see, e.g., Johnson, Computer Ethics, 1994), or as an expression of core values such as security (Moor).   What is typically absent from such debates is an analogy between privacy rights and property rights.   Whether privacy rights stem from property rights, or whether property rights are merely a useful metaphor, there is value in drawing this comparison.

Property, if properly understood, is not a characteristic of the relationship between an person and an tangible or intellectual good, but rather a characteristic of a relationship between two or more individuals with respect to that good.   It is often stated that property conveys a “bundle of rights,” including, among others, the right to control the use of the property, the right to benefit from the property (such as by living on the property or through mining its minerals), the right to transfer or sell the property, and the right to exclude others from the property.   The most significant, and perhaps the most elemental of these rights is a right to exclude, since most of the other rights are derived from it.   For example, when one buys a home, the most important right one buys is not the right to live in that space (one could live in a public park), but rather the right to lock the doors and prevent others from occupying the space.   This fact is even more evident with respect to intellectual property, as the owner of a patent or copyright obtains relatively little benefit from merely being able to enjoy the use of an artistic work or an invention.   The more valuable right associated with patents and copyrights is the right to “exclude” others from making, using, or copying the property, since this forms the basis of the right to benefit to charge others from its use.

When one objects to an action as an “invasion of privacy,” the complaint is most frequently either a claim akin to trespass (as in a physical intrusion on seclusion), or an information-related claim (an objection to how information is obtained, maintained,   used, or shared with others).   Whether it is an actual use of the information or a fear of a potential use of the information, the holding of information about another individual changes the nature of the relationship between the two.  

It is widely recognized that information is a good, in that it has value for certain individuals, depending on characteristics such as the accuracy, timeliness, and relevance of the information, and it is frequently bought and sold.   According to John Locke’s natural rights definition of property, one establishes ownership rights when one combines one’s labor with nature, and this is certainly the case with respect to information, since it typically requires labor in the observation, interpretation, synthesis, and expression that are typically required for its production.   Information, therefore, is a form of property, independent of whether the law is willing to recognize an exclusive right to it.   In fact, information is often not protected by property rights (for example, “facts are not copyrightable” Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991); “Any presentation of information characterised solely by the content of the information is not patentable,” European Patent Office Examination Guidelines).  

Information about individuals carries with it multiple competing ownership claims.   For example, when an individual waits outside the home of another person to take photos through the curtains, or when one scours publicly available databases of information and combines that data in new ways, one “adds labor to nature,” and thus has a reasonable claim to some form of property right in that information.   However, the subject of the photographs or of the database records is likely to challenge that ownership right, and demand a right to exclude others from being able to use the information.   Thus, in essence, there are two individuals asserting competing claims to title of the information, because each seeks to control the information, although for very different reasons.   Although terms such as “property” and ownership” are not generally used in analyzing such disputes, the analogy to property might prove useful.

Within the domain of privacy, when there are competing claims to the ownership of information, the claims of each individual are typically of a different character.   On the part of the holder of the information, the value of the information is purely instrumental, and the ownership claim is typically one of either Lockean labor theory, if the individual expended effort in gathering the information, or else ownership due to transfer of title.   On the other hand, the individual about whom the information refers typically has a more complex set of claims, some of which arise from the risk of harm (such as when one’s credit card information is taken), and some of which arise from a more personal connection to the information.   Because one may feel that the information is a representation of one’s personality, the information itself may be tied up in one’s personhood.

The notion of a personality theory of property dates back to Hegel (Philosophy of Right, 1821), and is a thread through the property theory of numerous writers (for example, note Marx’s distinction between the value of property earned by ones’ own labor as contrasted with property earned by the labor of others).   Particularly applicable to information privacy analysis is the work of Margaret Jane Radin (see, e.g., “Property and Personhood,” 34 Stanford Law Review 957-1015 (1982); and Reinterpreting Property, The University of Chicago Press (1993).   The essence of Radin’s personality theory of property is that there are some objects which are so closely tied to one’s personhhod that one feels as though the objects are a part of oneself: For example, Radin explains, “if a wedding ring is stolen from a jeweler, insurance proceeds can reimburse the jeweler, but if a wedding ring is stolen from a loving wearer, the price of replacement will not restore the status quo – perhaps no amount of money can do so.” (Radin, 1993, at p. 37).   This example illustrates the distinction between ownership rights that are purely instrumental – “fungible rights,” and those that are personal.

There are many examples of disputes over tangible property in which the right of one party is purely fungible, and the right of the other is personal, such as the rights of tenants in a home as compared to landlords, or the rights of a family who have lived on a homestead for generations as compared to the rights of a developer who wishes to build a shopping center on the property.   In the extreme case, such distinctions may well lie behind our societal prohibitions on selling body parts as commodities, or on the selling of children.   Although some authors have suggested that permitting the sale of body parts or of children in a free market would further a maximization of utility (see, e.g. Posner, Economic Analysis of Law, 1992), most societies have chosen not to do so, because, argues Radin, that to do so would be degrading to personhood.   (Radin, Contested Commodities: The Trouble With Trade in Sex, Children, Body parts, and Other Things, 1996).  

Competing claims to information privacy frequently exhibit a similar contrast between claims that are merely fungible on one side, and those that are tied up in a sense of personhood on the other.   Because informational privacy disputes are a relatively new phenomenon in public policy debates, but property rights have been discussed for centuries, there could be value in drawing upon settled legal doctrines.   Thus, using the personality theory of property should prove to be a useful metaphor in exploring issues in the commodification of personal information.