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Published online by Cambridge University Press: 06 December 2019
Most current work on privacy understands it according to an economic model: individuals trade personal information for access to desired services and websites. This sounds good in theory. In practice, it has meant that online access to almost anything requires handing over vast amounts of personal information to the service provider with little control over what happens to it next. The two books considered in this essay both work against that economic model. In Privacy as Trust, Ari Ezra Waldman argues for a new model of privacy that starts not with putatively autonomous individuals but with an awareness that managing information flows is part of how people create and navigate social boundaries with one another. Jennifer Rothman's Right of Publicity confronts the explosive growth of publicity rights—the rights of individuals to control and profit from commercial use of their name and public image—and, in so doing, she exposes the poverty of treating information disclosure merely as a matter of economic calculation. Both books emphasize practical and doctrinal solutions to the problems they identify. In this essay, I take a step back and draw out the extent to which they converge on a fundamentally important point: the blunt application of market logic with its tools of property and contracts fails to protect the interests that lead us to turn to privacy in the first place; the tendency to economize privacy is a significant part of why we inadequately protect it.
1 Waldman suggests that “case-by-case litigation is uniquely suited to the task” (p. 74). One reservation here is that litigation is often unaffordable for ordinary users, especially given that large data companies have very deep pockets and a strong interest in preventing tougher privacy norms from developing. Litigation will thus tend to be a long-term strategy aimed at changing the behavior of data intermediaries; that strategy will need to be supported not just by successful, high-profile litigation but by things like generous class certification or even statutory reform enabling and incentivizing regulatory agencies to act on the behalf of consumers.
2 Zacchini v. Scripps-Howard Broadcasting Company, 433 U.S. 562, 573 (1977).
3 For the critique of incentives, see, for example, Tushnet, Rebecca, “Economies of Desire: Fair Use and Marketplace Assumptions,” William & Mary Law Review 51, no. 2 (November 2009)Google Scholar; and Kwall, Roberta Rosenthal, “Inspiration and Innovation: The Intrinsic Dimension of the Artistic Soul,” Notre Dame Law Review 81 (May 2006)Google Scholar. My own contribution to this discussion appears in my book The Biopolitics of Intellectual Property: Regulating Innovation and Personhood in the Information Age (Cambridge, U.K.: Cambridge University Press, 2020, pp. 64–70), which revises my argument in the book chapter “Copyright between Economic and Cultural Models of Creativity” (in Joseph C. Pitt and Ashley Shew, eds., Spaces for the Future: A Companion to Philosophy of Technology [New York: Routledge, 2018]).
4 That is, entitlements generate positive externalities, a condition that might go away if property owners were allowed to try to internalize the full value of their assets. See Frischmann, Brett M. and Lemley, Mark A., “Spillovers,” Columbia Law Review 100, no. 2 (2006)Google Scholar. The flowers example is from Lessig, Lawrence, Code and Other Laws of Cyberspace, Version 2.0 (New York: Basic Books, 2006)Google Scholar.
5 On this, see, for example, Sunder, Madhavi, “IP3,” Stanford Law Review 59, no. 2 (November 2006), pp. 257–332Google Scholar; Cohen, Julie E., “Creativity and Culture in Copyright Theory,” UC Davis Law Review 40, no. 3 (March 2007), pp. 1151–1205Google Scholar; Tehranian, John, “Towards a Critical IP Theory: Copyright, Consecration & Control,” Brigham Young University Law Review (2012)Google Scholar; and Boyle, James, The Public Domain: Enclosing the Commons of the Mind (New Haven, Conn.: Yale University Press, 2008)Google Scholar. The idea that property rights are about internalization is most famously developed by Harold Demsetz. See, for example, Demsetz, Harold, “Toward a Theory of Property Rights,” American Economic Review 57, no. 2 (May 1967), pp. 347–59Google Scholar. The move to internalization in IP is criticized in such texts as Frischmann, Brett M., “Evaluating the Demsetzian Trend in Copyright Law,” in Review of Law & Economics 3, no. 3 (2007), pp. 649–77CrossRefGoogle Scholar; and Frischmann and Lemley, “Spillovers.”
6 Radin, Margaret Jane, Contested Commodities: The Trouble with Trade in Sex, Children, Body Parts, and Other Things (Cambridge, Mass.: Harvard University Press, 1996)Google Scholar.
7 Hull, Gordon, “Successful Failure: What Foucault Can Teach Us about Privacy Self-Management in a World of Facebook and Big Data,” Ethics and Information Technology 17, no. 2 (June 2015), pp. 89–101CrossRefGoogle Scholar.
8 There is a robust literature on manipulation of users online by advertisers (quite apart from that on fake news and so forth). See, for example, Yeung, Karen, “‘Hypernudge’: Big Data as a Mode of Regulation by Design,” Information, Communication & Society 20, no. 1 (2016), pp. 118–36CrossRefGoogle Scholar.
9 Fallon, Richard H. Jr., “Two Senses of Autonomy,” Stanford Law Review 46, no. 4 (April 1994), pp. 875–905CrossRefGoogle Scholar.
10 Becker, Gary S., “The Economic Approach to Human Behavior,” in Febrero, Ramón and Schwartz, Pedro S., eds., The Essence of Becker (Stanford, Calif.: Stanford University Press, 1995), p. 13Google Scholar.