The basic argument that I make in the book Database
Nation is that property is a dangerous tool to protect privacy for the
following reasons:
1. What you own, you can sell, give away, or have taken from you.
2. Traditionally, you don't own information about yourself --- the
companies that pay to get the information own it.
3. People who use the phrase "ownership" are more often than not talking
about something that is more similar to France's "moral rights" or our
notion of human rights, than property rights.
Thanks for cc'ing me, Declan.
----- Original Message -----
From: Declan McCullagh <[EMAIL PROTECTED]>
To: dmolnar <[EMAIL PROTECTED]>
Cc: <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]>
Sent: Wednesday, April 12, 2000 11:33 PM
Subject: Re: The Death of the Cypherpunks
> At 22:29 4/12/2000 -0400, dmolnar wrote:
> >I'm also interested in your comment that contract law may be sufficient
to
> >combat this problem. Garfinkle raises and then dismisses the idea of
> >considering personal information as "property", and then developing the
> >notion of rights and contract which we have for other property for
> >personal information. Who has treated this from the other side, the
> >libertarian/anarchist/whatever you want to call it viewpoint? is there
> >a good introduction to "contract law and personal data" lying around
> >someplace?
>
> Tim has already responded to this idea (it's Garfinkel, BTW), but let me
> try to add something. Clearly information about me cannot be "property" in
> the sense that my car is. Someone walking down the street can observe
> identifiable information about me and communicate it to others. That's
> called gossip, or news reporting, or database-adding and it's long served
a
> socially valuable function.
>
> Restricting it through force of law would rather put a damper on dinner
> table conversations, not to mention muzzling journalists -- who traffic in
> personal information about someone for their own financial gain. Sure, an
> exception can be devised to allow reporting, but in this
anyone-can-publish
> age, it would likely swallow the rule.
>
> But restricting it through force of contract? That's a different story,
> with plenty of precedent. We interact with business associates, doctors,
> priests, and counselors every day, and expect our exchanges to be private.
> We are used to using contract law and reputation and other
non-governmental
> authority structures to reinforce our expectation and provide means of
> redress in traditional spaces. Now we need to extend this concept.
>
> Tim correctly pointed you to basic sources of information on freedom to
> contract, which you should read and digest.
>
> But these also might be useful:
> http://www.intellectualcapital.com/issues/issue225/item4270.asp
> http://www.cato.org/pubs/pas/pa-295.html
> http://www.law.ucla.edu/faculty/volokh/privacy.htm
>
> I'm copying Simson.
>
> -Declan
>
