Privacy Inalienability and Personal Data Chips

Abstract

Even as new possibilities for trade in personal information promise new avenues for the creation of wealth, this controversial market raises significant concerns for individual privacy-consumers and citizens are often unaware of, or unable to evaluate, the increasingly sophisticated methods devised to collect information about them. This Essay develops a model of propertized personal information that responds to concerns about privacy and evaluates it in the context of tracking chips. It sets out the five critical elements of such a model, which is intended to fashion a market for data trade that respects individual privacy and helps maintain a democratic order. These five elements are: limitations on an individual’s right to alienate personal information; default rules that force disclosure of the terms of trade; a right of exit for participants in the market; the establishment of damages to deter market abuses; and institutions to police the personal information market and punish privacy violations.

2005. This essay is an abridged version of Property, Privacy and Personal Data, 117 Harvard Law Review 2055 (2004).