A Radical Proposal on Privacy

Special to L. Neil Smith’s The Libertarian Enterprise

Shortly after the Supreme Court issued the decision in Dobbs v. Jackson, people were concerned all of a sudden about privacy for people seeking abortions.

The decision in Dobbs does not ban abortion. It simply removes the power to do that from the federal government, and hands it back where it belongs, to the states. Some states will continue to allow abortions. Others will probably ban abortions. Some states (Louisiana, Wyoming, and others) have passed “trigger bills” that ban abortion if the Supreme Court overturned Roe v. Wade. Thus, Dobbs gives the country a patchwork of abortion laws. It is easily predictable that under the new regime people will cross state lines to seek abortions.

And that sets the stage for other legal messes. Some states may ban going to another state in search of an abortion, or helping someone to do so.

Meanwhile, personal privacy is rapidly evaporating from the internet. That app on your phone that tracks your ovulation: is it phoning home? And will the vendor sell the data onward? And will it sell the data, directly or indirectly, to law enforcement?

This unsavory prospect has some people up in arms. Several Democrat Senators have urged the Federal Trade commission to do something about this. It has just become a real problem and Big Tech is standing there with its thumb up its butt.

Conservatives are also starting to notice. The free market think tank Texas Public Policy Foundation recently called for a Digital Bill of Rights and has proposed legislation.

Mind you there is nothing new about the leakage of data from apps to third parties. What is new is that people who until recently didn’t give a damn about privacy are now very concerned about it. But only because this aspect of privacy might make possible the prosecution of people out doing something which is near and dear to them. I have yet to see any evidence that any of them are re-thinking the US legal approach to privacy.

So while those Democrat Senators are hypocritically plumping for privacy for a very narrow group of people, let me make a proposal. A radical proposal.

You live at a certain street address. Who owns the fact that you live at that address?

You have a certain phone number. Who owns the fact that you have that phone number?

You have a certain IP address. Who owns the fact that you have that IP address?

Right now, nobody owns those data. And as a result, you have no privacy.

Property rights adhere to things of value. If something has no value, there is no point in anyone owning it. 15,000 years ago, no-one had any property rights in North America. No-one lived there. Since then, people have moved to North America, and divided it up, sometimes rather violently. Now much of it is settled, and all of it is marked up as owned.

Governments own parts of it. In Wyoming the federal government owns some 50% of the surface estate. In Nevada, it owns more than 95% of the surface estate. But individuals, directly or via associations, own much of the rest. And they have titles to prove it. And the put up fences and signs to set boundaries on it. The fact that governments own land does not invalidate the concept of land as private property.

Private property allows owners to protect what they own, without any sort of collective action beyond any collective mechanism by which they own it. Governments can help by passing laws that clarify title, set penalties for trespassing, and other purposes.

It used to be that the fact that you had a certain IP address had little or no value. Now it’s valuable: advertising companies like Alphabet (Google) and Meta (Facebook) sell narrowcast advertising to a range of IP addresses, and make oodles of money doing it. An entire industry of data brokers exists to collect and collate this data, and sell it onward to customers like Alphabet and Meta. To political campaigns. And to governments. Now the fact that you have a certain IP address is valuable.

There is money to be made enforcing privacy. Back when telephone companies published telephone directories, telcos charged people to not be listed. And people paid it. This is perverse, of course: the telco should pay you for permission to publish your phone number.

So, to my radical proposal: Who owns the fact that you have a certain phone number or IP address? I say that you do. And because it is your property, you get to say who gets to use it and who doesn’t, and how they get to use it. Same as you set those limits on your land.

Certainly your telco has a technical need to know which telephone number is yours so they can route calls to you. For technical reasons your ISP needs to know which is your IP address. OK, when they assign you that phone number or that IP address, you give them the contractual right to use that fact for the administration of their network. And nothing else. They can’t sell or otherwise transfer that fact onward without your affirmative permission, and payment. And transferring it onward should be opt-in: you must afirmatively give your consent. Transferring your data onward without permission would be trespassing, the same as walking on your lawn without permission.

Get off my lawn!