Privacy as Property?

2026-06-17 · Source: TeachPrivacy · Field: Legal & Regulatory — Compliance & Risk Management, Regulatory Affairs & Government Relations · Depth: Advanced, long

Summary

Daniel J. Solove's article "Privacy as Property?" critically examines the proposal to protect personal data via property rights, arguing it is ineffective. Referencing his 2004 book "THE DIGITAL PERSON," Solove identifies six deficiencies. He contends property rights' alienability allows companies to compel data transfer, eroding existing inalienable privacy protections. This framework also legitimizes the data-for-services model, potentially emboldening companies to claim wider usage. Individuals cannot accurately value their data due to aggregation effects and unknown future uses, risking undervaluation. Solove emphasizes data's value transcends monetary compensation, encompassing risks like fraud, a point missed in Dwyer v. American Express Co. (1995). The shared nature of much personal data, like genetic or transactional information, complicates clear property assignment. Finally, property rights are too individualistic to address societal privacy harms, especially in the "inference economy" where AI models use collective data. Solove advocates for focusing on protection against risk and harm, rather than ownership.

Key takeaway

For legal professionals and policymakers evaluating new privacy frameworks, relying on property rights for personal data protection is counterproductive. This approach risks weakening existing inalienable privacy rights by enabling companies to compel data transfer and claim broader usage. Instead, focus your efforts on developing robust consumer protection models that directly address the risks and harms associated with data aggregation, unknown future uses, and the collective impact of data in the "inference economy." Your goal should be to safeguard individuals and society from data misuse, not to assign ownership.

Key insights

Protecting personal data with property rights is fundamentally flawed and risks diminishing individual privacy protections.

Principles

• Property rights' alienability enables forced data transfer.
• Data valuation is complex due to aggregation and future uses.
• Privacy harms extend beyond individual monetary loss.

Topics

• Privacy Law
• Property Rights
• Data Governance
• Consumer Protection
• Data Valuation
• AI Ethics

Best for: Legal Professional, Policy Maker, AI Ethicist

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Editorial summary, takeaway, and curation by AIssential. Original article published by TeachPrivacy.