Lots of readers have wondered why I unload so heavily on the privacy lobby in these posts and here.)
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The Brandeisian notion that we should all “own” our personal data has some appeal, of course. If I have a secret, it feels a lot like property. I can choose to keep it to myself, or I can share it with a few people whom I trust. And I would like to believe that sharing a secret with a few trusted friends doesn’t turn it into public property.
It’s like my home. Just because I’ve invited one guest home doesn’t mean the public is welcome.
But in the end, information is not really like property. Property can only be held by one person at a time, or at most by a few people. But information can be shared and kept at the same time. And those with whom it is shared can pass it on to others at little or no cost. If you ever told a friend about your secret crush in junior high you’ve already learned that information cannot be controlled like property.
As Ben Franklin is credited with saying, “Three may keep a secret if two of them are dead.” The redistribution of information cannot be easily controlled in the best of times, and Moore’s Law is making the control of information nearly impossible.
The recording and movie industries discovered the same thing. If these industries with their enormous lobbying and litigation budgets cannot control information that they own as a matter of law, the rest of us are unlikely to be able to control information about ourselves. Gossip is not going to become illegal simply because technology amplifies it.
That’s why Brandeis’s proposal never really got off the ground, at least not as he envisioned it. Buoyed by Brandeis’s prestige, the idea that private facts are private property lingered on in the courts for years, but what survived of his proposal is scarcely recognizable today.
In fact, so transformed is Brandeis’s privacy doctrine that it is now described, accurately, as a “right of publicity,” which surely would have him turning in his grave. Currently, most states honor Brandeis by allowing lawsuits for unauthorized commercial use of a person’s likeness, either by statute or judge-made law.
Over time, courts lost sight of Brandeis’s purpose. They began to take the analogy to property literally. Brandeis wanted to treat private information like property because that was the only way to give a remedy for the “mental pain and distress, far greater than could be inflicted by mere bodily injury,” that he thought a man suffered when his photo was published without permission. But as people got used to having their pictures taken, the mental pain and distress slowly drained out of the experience.
All that was left was the property analogy. And so judges began shrinking the right until it only had bite in the one set of circumstances where the right to control one’s image actually feels like a property right—when the image is worth real bucks. Thus, the courts require disgorgement of profits made when a celebrity’s name, face, voice, or even personal style is used without permission to sell or endorse products. As a result, the right to exploit a celebrity’s image really is property today; it can be sold, transferred, and even inherited.
There’s only one problem with this effort to turn privacy into property. It hasn’t done much for privacy. It simply protects the right of celebrities to make money off their fame. In fact, by monetizing things like celebrity images, it rewards those who have most relentlessly sacrificed their privacy to gain fame.
The right of publicity is well named. It is the right to put your privacy up for sale. Not surprisingly, a lot of people have been inspired to do just that. Ironically, Brandeis’s doctrine has helped to destroy the essence of what he hoped to preserve.
Oh, and in the process, Brandeis’s approach has stifled creativity and restricted free speech—muzzling artists, social commentators, and businesspeople who want to make creative use of images that are an essential part of our cultural environment. It’s a disaster. Slowly, courts are waking up to the irony and limiting the right of publicity.
The same “private information as property” approach has also made a modest appearance in some consumer privacy laws, and it’s worked out just as badly. At bottom, consumer privacy protection laws like the Right to Financial Privacy Act treat a consumer’s data like a consumer’s money: You can give your data (or your money) to a company in exchange for some benefit, but only if you’ve been told the terms of the transaction and have consented. Similarly, the Cable Communications Policy Act of 19842 prevents cable providers from using or releasing personal information in most cases unless the providers get the customer’s consent.
The fruit of this approach is clear to anyone with a bank account or an Internet connection. Everywhere you turn, you’re confronted with “informed consent” and “terms of service” disclosures; these are uniformly impenetrable and non-negotiable. No one reads them before clicking the box, so the “consent” is more fiction than reality; certainly it does little to protect privacy.
Indeed, it’s turning out a lot like the right of publicity. By treating privacy as property, consumer privacy protection law invites all of us to sell our privacy.
And we do.
Only for most of us, the going price turns out to be disconcertingly cheap.