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A SOCIETY protects its values in different and overlapping ways. The values of free speech in America are protected by a constitution that guards against speech abridging regulation (U.S. Constitution , First Amendment). They are supported by copyright regulation intended as an “engine of free expression” to fuel a market of creativity (Harper & Row Publishers, Inc. v. Nation Enterprises , 471 U.S. 539 (1985)). They are supported by technologies such as the Internet that assure easy access to content (Lessig, 1999: 164-185). And they are supported by norms that encourage, or at least allow, dissenting views to be expressed (Lessig, 1999: 164-185; 235-239). These modalities together establish cultural resources that to some degree support the right to speak freely within American society. This is an essay about the cultural resources that support the values of privacy. My aim is to promote one such cultural resource—the norms associated with property talk—as a means of reinforcing privacy generally. In my view, we would better support privacy within American society if we spoke of privacy as a kind of property. Property talk, in other words, would strengthen the rhetorical force behind privacy.1 Such a view is not popular among privacy advocates and experts in the field of privacy law. It has been expressly rejected by some of the best in the field.2 Thus it is my burden to demonstrate the value in this alternative conception. This essay alone will not carry that burden. But my hope is that it will at least evince a benefit from our reconceiving privacy talk. SOCIAL RESEARCH, Vol. 69, No. 1 (Spring 2002) Privacy as Property* BY LAWRENCE LESSIG *I am grateful to Jason Catlett for correction of and advice about parts of this essay. That is not to say he agrees. I will address some of the objections to this form of speaking, but only after advancing the arguments in its favor. The essay moves in six parts. I first introduce two stories that will frame my argument (parts I and II). I then consider one account by Professor Jonathan Zittrain that might explain the tension that is revealed between these two stories (part III). Part IV offers a different account from the one proposed by Professor Zittrain . In the final part, I offer a brief response to some of the criticisms that have been made of the privacy as property model. I then conclude. I At a public debate about the increasing scope of patent protection granted by U.S. law to software and business method inventors , Jay Walker, the president of Priceline.com and Walker Digital and a holder of many of these new, and controversial, patents, was asked to justify them. Did we know, Walker was asked, whether increasing the scope of these new forms of regulation would actually increase innovation? Or would they, by requiring every developer to add to its team covens of lawyers, increase the costs so much as to chill or stifle innovation? (“Internet Society,” 2000). Walker did not have a strong answer. In the face of evidence that these patents harm innovation, he could cite no firm evidence to the contrary. Would it not make sense then, Walker was asked, to have a moratorium on this new form of patent protection until we learn something about its economic effects? Why not study the effect, and if it is not clear that they do any good, then why not halt this explosion of regulation? Walker exploded in anger at the very suggestion. Grabbing the mic, he said to the questioner: “Does that mean if Microsoft takes my property, I can’t bring a suit against them, is that what you’re suggesting?” (“Internet Society,” 2000; emphasis added). 248 SOCIAL RESEARCH II Amazon.com is a collector of data. It sells books to collect that data. These data help it do an extraordinary job understanding its customers’ wants. By monitoring their behavior, Amazon can build large and accurate profiles about its customers. And using powerful data-matching techniques, it can predict what books they are likely to want to buy. Amazon had a privacy policy. The data it was collecting, Amazon said, would not be...

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Additional Information

ISSN
1944-768X
Print ISSN
0037-783X
Pages
pp. 247-269
Launched on MUSE
2015-04-01
Open Access
No
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