Privacy As Intellectual Property?

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Abstract

Some economists and privacy advocates have proposed giving individuals property rights in their personal data to promote information privacy in cyberspace. A property rights approach would allow individuals to negotiate with firms about the uses to which they are willing to have personal data put and would force businesses to internalize a higher proportion of the societal costs of personal data processing. However, granting individuals property rights in personal information is unlikely to achieve information privacy goals in part because a key mechanism of property law, namely, the general policy favoring free alienability of such rights, would more likely defeat than achieve information privacy goals. Drawing upon certain concepts from the unfair competition-based law of trade secrecy, this article suggests that information privacy law needs to impose minimum standards of commercial morality on firms engaged in the processing of personal data and proposes that certain default licensing rules of trade secrecy law may be adapted to protect personal information in cyberspace.

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