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Next, a look at the benefits of a property -based approach to personal data protection.
The discussion was hosted by the American Enterprise Institute in Washington, D .C.
It's an hour and a half.
Good Monday morning, everyone.
Thanks for coming, those of you in the room.
Thanks for logging in, those of you coming in remotely.
And we're delighted to have a C -SPAN audience this morning as well.
I've classed this This event is sort of a battle royal between two opposing viewpoints, and that's for fun.
I think we'll actually have more synthesis than battling, but we'll have something out.
In putting this together, even just ahead of this, talking with each other, I've been thinking in terms of myself.
What has me writing the paper I wrote?
It's called Personal Information is Property.
Where do these ideas come from?
Where does this event come from?
Well, I'm a contrarian.
I'm always focusing on the other way of thinking about things.
I've often joked that if Washington, D .C. were to adopt the libertarian beliefs that I have, I would immediately go communist.
So the nascence of this event is kind of perfectly contrarian because here in the heart of the nation's capital, the seat of the greatest legislature the world has ever seen,
I'm going to say the action isn't here.
And Jane is essentially going to say, to the extent it is here, you're doing it wrong.
So this is really a sort of a contrarian event in its founding, if you'll allow it.
But I have been thinking about privacy for a couple of decades.
I'm sort of pre -committed to markets and property.
And I'll share with you when I get to my main presentation, my paper, Personal Information is Property.
And then Jane is going to share hers, which is a neat paper.
I have notes to myself about the informal introductions I'm going to be doing.
I'll remind you that you can ask questions from remotely, but not if you're watching a recorded version of this event.
You can ask questions by tweeting the hashtag AskAEITech.
That will be forwarded up here to this iPad from which I will take those questions and pass them along to the extent I approve of them.
I'll introduce my co -panelists and then sort of present.
As I said, we'll go down the row.
Jane and I have been collaborating for some years now.
We co -taught a privacy law class.
We have a privacy law casebook coming out about a year from now.
And it's been a wonderful collaboration.
I tend to be rigid, perfectionistic, and unwavering in my views, and Jane is open -minded, interested, and exploratory.
So that makes for a really good partnership, I think.
And she does have this article where we actually are somewhat in conflict with one another.
So it's a great opportunity to explore more and learn more about some basic concepts.
To provide us with the basic concepts, we have Adam McLeod.
And I'll share briefly that in the course of writing my paper, I developed a sort of thesis that legislative law was overtaking common law processes.
So especially here in the tech world where you have new problems arising or very different problems from the ones we're familiar with.
Common law doctrine would evolve to address these, but legislatures were moving faster.
And so common law processes were being foreclosed or headed off by legislation.
And that was a problem for common law.
I wrote a piece in Law and Liberty to which Adam responded very eloquently and in great depth.
And that started a conversation between us that resulted in an email from Adam to me.
So erudite.
I thought you were going to stop with that.
A lot of really wonderful material.
And I've blogged up some stuff that I found through an event of theirs.
Not one I attended, but just looking at what they're doing, they produce really interesting and useful information.
I think James is one of the best read people in the privacy area right now.
And to my jaundiced view, a lot of his work brings...
Some realities to the privacy law debate and to what is happening at the Federal Trade Commission.
Looking at what people actually want, looking at what people actually care about from an economist's perspective is very helpful stuff.
So my recommendation to you to watch what's going on at PEP and listen carefully to James before you dismiss it entirely.
We have a lot of fun together.
I'll now turn to my argument in chief, which is to describe this.
This paper of mine.
Again, personal information is property.
Everybody's acutely aware of antitrust issues these days, so you can bing it, or you can duck -duck -go it.
You could brave it, if you want to look for the article, and it'll come up pretty readily on your favorite search engine.
Competitive search engine.
First, privacy in my view is a number, people use the word for a number of different interests.
Control of information about themselves.
Security in at least two forms.
Personal security, that is security against violence.
Financial security, which is largely security against being victimized by identity theft.
People say the word privacy when they mean reputation.
Privacy refers to peace and quiet.
Fairness sometimes.
Autonomy is definitely a strain of the privacy discussion.
And finally, there is an anti -commercial dimension to privacy.
Some people believe that privacy is holding oneself apart from commerce.
All fine, but it's important to understand that there are many, many different values at stake.
My observation, sort of stepping back from all that, is that what's happening in online ecosystems is essentially trade.
It's trade, and very often the trade is denominated on the consumer side in personal information.
You share up some personal information and that helps support the websites that you see and the services you receive very inexpensively or for free.
To me, the terms of service and privacy policies are actual contracts.
Contracts that among other things divide up the rights to personal information.
Possession almost always is with the service provider and they hold it.
But the right to exclude others from the personal information remains with the customer.
And that right to exclude others, this is the sort of bundle of sticks theory of property, the right to exclude others, that's privacy protection.
The web service that I use can use information that is developed through the relationship on its own internally, but can it publish the information it has about me?
Absolutely not.
That would violate the contract, perhaps tort.
Recognizing information as property explains very well what's going on, I think.
And that's kind of what I'm trying to do here, is just get the best legal explanation for what's going on.
In the paper, I articulate various ways that recognizing personal information as a form of property would help protect consumers on various small margins.
A thesis that's meant to revolutionize things or bring a great change.
It's mostly explanatory.
But you would get changes of small degree where, for example, in bankruptcy, if personal information is regarded as property, well then it is restored to the original owner rather than made part of the bankruptcy estate to be sold off.
Back in the day, among privacy advocates, the Toy Smart case was a big question mark.
What happens with the Toy Smart when it goes bankrupt?
It's promised not to share this information, but it's about to put it up for sale.
That doesn't make sense, and property helps make sense of that.
A tightening up of the data industry.
If it's possible that a unit of information was taken wrongly from someone, that's different from what we have now, which is sort of no explanation for where some of the Lower end data brokers have information that might have been taken from people without their knowledge,
without their understanding, without their consent or any other way.
They downloaded a flashlight app and it turns out that that's reporting their location information widely.
Treating this information as property makes more clear the wrong that is done when things like that happen.
In the paper, I go through how treaty information is property squares with basic property theory, from Locke to Demsetz to Radin.
And I try to articulate a vision of this as the next iteration for property rights that originated prehistorically.
We had early societies developed property rights in land because that set up the incentive system to make land useful.
We developed property rights in movables, and that facilitated trade, which has been extremely, phenomenally wealth -increasing for societies.
And the next development, I argue, is in property rights and information so that we can see a similar growth in the future as we move into the information age.
I'll do a highlight and a lowlight for my paper.
The physics of...
Panel presentations.
We allocated about 10 minutes to each of us to chat a little bit.
Somehow I'm taking 15 or 20 minutes, but time slows or speeds up when you talk.
It's the physics of panel discussions.
But I'll do a quick highlight in low light for my paper.
I'm excited and pleased to have found there are Supreme Court cases that treat information as property.
Monsanto v. Ruckelshaus in the takings area found that information was a form of property subject to protection under the takings clause.
And there's a Carpenter case, not the Carpenter case dealing with cell phone location information, but dealing with Wall Street Journal's information in which the Supreme Court found that...
Information is money or property for purposes of the wire fraud statute.
So there's Supreme Court law on point here.
And a little bit of research I did that I think is fun is going and looking.
Now, as I've said before, I think statute law has kind of kept courts from finding directly that information is property.
But go looking for the phrase stolen information.
Now, theft is a property crime.
Look for the phrase stolen information.
And I found that Every federal circuit court and many state supreme courts have talked in terms of stolen information.
So they are conceiving of this thing as property, even if they're not having to find in the course of applying a particular doctrine that information is property.
The low light of my paper, I think I'll confess straight away, is I'm not actually sure what happens to free speech.
If there were a thoroughgoing finding that information was property, I suspect that it would be abused somewhat.
To to curtail speech in a way that we might not all like, but I think doctrine can be found, law can be developed that will balance these things, so that recognition of information as property and speech can live together, and an idea I put forward in that is the idea.
Look, I mean property law is not terribly simple itself.
There are easements of all different kinds that people have across one another's real property.
I think I'll make a positive case and along the way,
Okay, good.
So, from the title of my paper, Getting the Property Out of Privacy, it should be obvious that I do not think we should, that courts or statutes or any other means of policymaking should propertize information outside of intellectual property,
which is sort of quasi -property -like, but for a very specific purpose.
Reason to create incentives for production and a few other areas as well.
So why do we disagree on this kind of fundamental question?
Well, let me first start off by explaining the way I categorize property versus other means of legally managing a problem comes mostly from the Calabrese and Melamed article, One View of the Cathedral,
where I'm going to paraphrase a little bit to fit my needs, but basically that paper distinguishes three different types of rules.
One, first they focus on liability rules, but I'm going to call that a liberty interest, where you can do an activity generally, and then it may be, though, that there's some form of public law, basically,
or something like public law, even if it's brought by private civil claim, that helps the state manage the risks.
Generally, you have freedom to move.
If you think about driving on the public street, there are rules related to risk management, but we wouldn't call those property rules.
Then there's property, where the key, I think Jim and I do agree on this, is that the key is the right to exclude or to control.
There are other sticks in that bundle as well, but that I think when you get to go to court and say, that's mine, return it to me, or in any case,
I need to be asked permission before someone else makes use of this interest, then we know we're in a property rule.
And then inalienable rules mean that they're even stronger than property.
It's that you almost must exclude.
You cannot give away your right.
So let me give an example.
I think almost anything could be, you know, has flavors of all three of these, but one of these types of rules predominates.
So if you think about our bodies, I would say that with our bodies, the property rule predominates.
However, there are still liability or freedom rules, like if I'm out on the public street and someone either innocently winds up You know either causing me physical harm or maybe is even just getting gets jostled into me while I'm on the subway or something That's a touching of my body,
but And but it's you know the law isn't going to treat it as a violation of my of my control over my body It's going to treat it under these risk management rules negligence and whatnot Likewise, there's some aspect in which my body is also inalienable.
I cannot pay someone to kill me, for example, to kill myself.
So in some ways, the body is also inalienable.
You have an inalienable right to the health of your body.
I hope this pays off.
Hold on.
Let me go through the next example.
The next example would be speech, where it is mostly a liberty or activity rule.
Risks related to defamation are treated through general public rules that are trying to manage social problems.
And you can create property style interests in speech through things like non -disclosure agreements.
But the very fact that you have to get into that contract of a non -disclosure agreement in the first place kind of shows that in general people are free to create speech.
So how would we categorize something amorphous and difficult like privacy?
The history of Handling privacy is kind of interesting in itself, because as Jim's paper explains, and I totally agree, it did start out with the Samuel Warren and Louis Brandeis article as conceived as a property right,
something that you control, much like IP.
But in the era where the American courts really took up this idea, they developed it under tort law, under a risk management.
So generally people were free to discuss things, to share even gossip, but if there was something that was especially beyond the pale, especially unreasonable, then the courts would recognize a claim.
That changed in the era of computing, basically, with things like the Hugh Report, things like the Fair Information Practice Principles.
And the EU and its data protection directive, the pre -GDPR rules there, where these statutes, I mean, so here maybe Jim and I might kind of disagree.
I think Jim is very nervous about statutes and sees property as a way around management through statutes.
But I see that same era of statutory privacy law as trying to establish a property interest.
And so maybe we share some common ground about having some misgivings about.
Thank you.
Like some of the proposals that Congress has been considering over the last couple years really means to vest people with a property interest.
GDPR goes even beyond that by trying to create a sticky form of property that has aspects that are inalienable.
So even if I have agreed to allow further processing or disclosure of my data, I can always claw it back.
So that's sort of an inalienability rule.
And so, if anything, we're heading, the trend is toward ever stronger forms of property interests in private personal information.
Okay, so what's better?
How do we know whether a general liberty rule or a property rule is better?
I rely here on the law and economics foundational writings of Coase, Richard Posner, Even Hayek, to some extent.
And generally, to distinguish property interests from, you know, from liberty or risk management types of problems, economists ask a few questions.
First, does the person who we might vest the property interest in have special information that would allow them to manage and use the resource better than others?
In the case of personal data, I do not think so.
Why don't I think so?
So first of all, I used to be uncertain about this because some early empirical work by Alan Weston, for example, seemed to show that people have very different...
...preferences when it comes to management of their privacy.
And so with surveys, Alan Weston found that this bimodal distribution, for example, so some people were very privacy concerned and others weren't.
And so that might be a reason to, okay, give everyone the interest and then they can trade it or not depending on their own personal preferences.
But over time, that has started to look quite different.
Some of my own research and that of others suggest that actually what's happening is People have very different predictions of whether they will or will not be harmed.
It's actually a very utilitarian style calculus.
It's just that the expectations going into that calculus differs by person.
So everyone is trying to basically manage their own kind of more or less economic interests.
That's the main goal.
And they just have different opinions about how to do so.
And then...
And then consumers are not good at predicting the upside of data sharing and data processing.
So whether we look at evidence from credit markets that use lots of new data in order to create better matching, reduce...
Interest rates and reduced foreclosures, for example, or whether we're looking at the quality of apps on the Google Store.
James has empirical studies about this.
People tend to underestimate the benefit and advantage that they get from having their data.
Repurposed and shared.
And by the way, even behavioral advertising is sort of, Jim alluded to this, it's the way that we get a lot of free and quite useful services and undermining that through sticky or even sort of compulsory forms of privacy would really be doing a disservice to the consumers themselves.
So that's one reason I worry.
On the flip side, I think people People are also understandably not good at understanding the risks, and there are real risks.
Privacy skeptic to the point of denying the value of privacy.
There are sucker lists.
There are fly -by -night companies that are trying to basically extract money illegitimately or commit fraud.
And it's very hard for consumers to distinguish between these.
And so there are risks and there are benefits, but consumers don't have the information to figure that out.
Okay, next.
And the likes would also ask, are transaction costs low so that if we give Jim the right to control his data, he can work around it and it can wind up making the best use?
Not really.
I think GDPR is a useful sort of experiment for us here.
The compliance costs are huge and all we get for it as consumers is like a kind of cruddy experience on the internet.
Mostly what we get from it is that.
Verification and policing, figuring out whether your data is going to those fly -by -night companies that I was describing, is extremely costly.
So no, not really.
I think what will happen, what has happened, is that people have been Okay, and then finally, are there negative externalities from privacy?
Yes, and yes, not just the kind of type where fraudsters and people who are committing unlawful acts might want to shroud themselves in privacy to get away with it,
but I'm even more I'm concerned about privacy unintentionally degrading performance, degrading the opportunity to look for to detect and reduce bias.
I'm concerned about privacy leading to less competition between platforms, apps, and startup companies.
On balance, it makes more sense to have a neutral
The paper again is how to get Privacy out of property law.
No, how to get the property.
How to get the property out of privacy law.
Maybe based on what you said, it's how to get the property out of privacy law on the Yale Law Journal Forum.
Easy to find online.
Adam.
Great.
Well, delighted to be here.
I learned a lot by reading Jim's paper and Jane's paper, even though as I was reading Jim's paper, my head was sort of bobbing up and down, and I was reading Jane's paper, just writing wrong, wrong, wrong in the margins, and hopefully we'll get into that during the discussion.
Yeah, so I'll just try to make three brief points in response, and I might not have time for the third one.
Maybe we'll get to it during the Q &A.
But the first point is that privacy rights are property rights, We're good to go.
Desirable?
Adam, take all the time you need.
I'm just going to say yes to Jim's paper and then add more details.
And then the third...
So the first point is we don't need to reinvent the wheel and I think actually a lot of the objections that you see from folks who are property skeptics, let's call them, simply rest in either too simplistic or just a misconception of what property and the common law actually do.
So the first point is that property rights and privacy long predate Professor Prosser's famous article and the 20th century developments.
They even long predate by centuries
This goes all the way back to the common law, prior to the American founding.
This was all worked out.
In a doctrine that became known as the First Publication Doctrine, or sometimes known as Common Law Copyright, and the basic principle of this is that no person can be compelled to publish, that is, make publish, their papers, effects,
their opinions, their personal information about themselves.
This, of course, was very hotly contested in England prior to the American Revolution, because prior to the English Revolution, there were ecclesiastical.
We're good to go.
Thank you.
Second, Property does the work, together with other common law institutions, especially contract, and I think Jim's paper does a really good job of explaining how this happens,
of assigning and distributing these rights in ways that are quite salutary.
And I'll just mention two common law institutions' rights that do a lot of this work.
With intangible resources like information.
The first is known as the bailment, and the second is known as the license.
These are both common law rights.
They're both powers of an owner at common law, an owner of property, and they work just as well with respect to intangible resources such as information as they do with respect to tangible resources such as food or furniture or animals.
So, two brief hypothetical scenarios.
The first is I take my suit to Ms. Betty, my dry cleaner, and I leave it with her with the expectation that I'll come back in three or four days and my suit will be cleaned and my suit will be returned to me.
Now, if Ms. Betty were to loan my suit to her nephew to wear at his prom, Ms. Betty has committed a legal wrong against me.
In other words, she's infringed my property right.
How do we know this?
Well, we know this because under the law of bailment, Ms. Betty has the right of exclusive possession, but that's subject to a duty to re -deliver the suit to me, and it doesn't come with any particular use rights of the suit in the interim.
Similarly, if someone were to break into Miss Betty's dry cleaning shop and take my suit, they've committed a wrong not only against me, but against Miss Betty.
Miss Betty, insofar as she's the bailee of my suit, has a right of exclusive possession and an action to recover the suit from a third -party wrongdoer.
All of these rights are arranged without any prior negotiations between Ms. Betty and me, without any legislation stating that these rights pertain between us, and without any expert innovations or analysis about transaction costs or who places the correct valuation on the resource.
This is done all very elegantly, simply, and silently by long -standing fundamental doctrine of bailment, which maps pretty closely over the actual
Let's take a second hypothetical.
Let's imagine two people in a romantic relationship.
Let's call them Travis and Taylor.
Let's suppose Travis and Taylor come up with a list of items that they want to purchase for each other at Christmas.
Now let's suppose that Travis takes this list to his brother Jason.
If Jason were to hand this list over to a tabloid reporter, Who were interested in what Travis and Taylor were buying each other for Christmas.
That would be a wrong that Jason would be perpetrating against Travis and Taylor.
Why?
Because Travis and Taylor have entrusted this list to Jason License.
Suppose we have...
A dinner invitation.
Invitation to come into...
I suppose you invite me into your home for dinner.
What have you just done?
As owner of your home, you have conferred upon me a privilege to enter into your home for the purpose of having dinner with you.
If you were to wake up the next morning and find me sitting in your kitchen drinking coffee...
I would be a trespasser at that moment.
Why?
Because I've exceeded the scope of the license that you conferred upon me in the exercise of your power as property owner of your home.
Again, this is all done by fundamental doctrines of property law which map onto the practical reasoning of people in the real world doctrines that have been long settled for centuries in our law.
And the same doctrines work exactly the same way with respect to intangible resources like information.
If I take Photographs from my family vacation to a printer and ask the printer to print them and produce a book that I can share with my family.
I have licensed the printer access to my family photographs.
If the printer were then to use those images in a book that the printer would have put on commercial sale for the public, that would be a wrong against the license that I conferred upon the printer.
Just the same way that me sitting in your kitchen the morning after our dinner party at your house would be a wrong, an act of trespass against your home.
So if property does all this work, if in fact privacy rights are property rights, and in fact property together with contract and other common law norms and institutions solves all these problems,
why so much skepticism about the role of property in common law?
Well, I think the biggest reason is that privacy law scholars, and this was driven home to me by reading many of the papers cited in the footnotes in Jane's paper, simply misunderstand or oversimplify common law norms and institutions.
Reading through Jane's paper, I identified 13 errors, and I won't discuss all of them because I don't want to use all the time, but I do...
I gave you the okay to do that.
I have license.
But I don't want to abuse the license, because I want to be a hospitable guest and to get invited back.
But I'll just group them very, very briefly into three headings, and then maybe we can unpack them during our following discussion.
Several things, first of all, that property is not.
Thank you.
Thank you.
Thank you.
Thank you very much.
So property then is justified on grounds not merely of economic efficiency although it certainly plays that role but actually primarily on the respect that property requires us to show for the practical reasoning of other people.
And then, property is not generally an individual right.
In fact, most property in most of the world is owned not individually, most of the most valuable property, but in fact it's owned either in concurrent estates, joint tenancies, tenancies in common, or by corporate persons.
And so most property rights are determined by actions and intentions of more than one person.
It's not as if the owner has a mere veto over most uses of property.
Second, I think the tort property dichotomy is not particularly helpful.
There are many property torts.
Trespass, nuisance, waste, conversion, and patent infringement are all torts which secure property rights.
Furthermore, most personal wrongs are not determined by a disinterested adjudicator.
Jane, I think, correctly mentioned torts against the body, assault, battery, and against reputation, defamation.
These are all more or less In rem rights, in the sense that it is the person whose body it is and whose reputation it is who gets to decide whether to consent to enter into the boxing ring or to engage in a discussion about character or fitness.
And so these look more like property rights in her analysis, even though they're personal rights.
And conversely, some property wrongs are determined by disinterested adjudicators, primarily.
We're good.
Intentional consent to form a contract or to alienate one's property right, but rather any manifestation of assent will suffice.
And this doctrine has made possible all of the many contracts of adhesion with which we're now familiar.
The click wrap and the shrink wrap and the checking the box when you download the app and the signing the contract that nobody actually reads when you rent an automobile at the desk and it's one o 'clock in the morning and you're just trying to get to your hotel.
Now, we may have a productive conversation about whether that's a good thing or a bad thing, but it's certainly not the case under the law that we have currently that property owners get an absolute veto over every potential act of alienation.
I'll note that Adam's got a good paper on all this called Cyber Trespass and Property Concepts in IP Theory, so that is also bingable.
James?
Oh, great.
So, again, thanks, Jim, for inviting me.
And it's great to be here.
I could end by just saying, "Jane's right." But I won't.
I'll try to add some value to this.
I'm going to put my economist hat on for this to at least try to differentiate myself because that's how you compete.
You try to find your little niche.
I'm not going to compete on property theory with either one of you.
I'll try to differentiate and create a local monopoly over economics up here on the stage.
I'm going to start off by saying Just first principles.
When I think as an economist in this privacy area, what are we thinking about?
Well, let's try to, you know, we always think of an objective function.
We want to maximize social value.
So what would social value be in this case?
In the privacy information case, it's the value of information in some sort of productive use, whether that's with the consumer or with the firm, but you also have to take into account the privacy costs, right?
And the privacy costs are intrinsic, and the intrinsic Privacy costs include what I call both dynamic and static.
Static would just be the basic, you know, someone looks into your home and sees you doing something that you don't want them to see, well, my utility goes down.
And then the kind of dynamic is the notion that you can't really evolve to your true self life observed, right?
I mean, it's the Truman Show.
As soon as Truman figures out he's being watched, he's not the same Truman as the I'll just say that right away.
Lots of things can go into utility.
Lots of things shift the demand curve and we certainly think about intrinsic privacy values and those are important because they impact utility, they impact demand.
The problem comes often, though, almost always, is how do we measure those?
And Jane alluded to this.
We like to measure privacy preferences with privacy valuation with revealed preference.
We like to see the trade -off that consumers actually make in the marketplace.
I think that's the best indication of evaluation.
So with that as kind of a background of where I want to go with this.
I'm going to dive into a little bit, pick up where Jane left off, or maybe duplicate some of what Jane said, is talk about, you know, if we think about...
We're good to go.
I think?
We get to the same outcome, right?
They both lead us to whatever the optimal allocation, the optimal use of information, let's call it, right?
But we're not likely to live in this world.
A Kosian solution, and by that what I mean is let's assign property rights and then allow the market to allocate those entitlements.
I mean, that's kind of a stripped -down version, but that's essentially what Kosa's brilliant insight that won him a Nobel Prize was when we have these third -party harms rather than...
You know, call one person the tortfeasor and the other person the victim or the externality causer and the victim.
Let's just say the problem here is that there's not a clearly defined entitlement to the right.
Let's define it and let the market allocate it the way we let the market allocate pens and coffee and everything else.
And then we'll end up at the efficient solution.
That is the preferred solution when we have private information.
Because, you know, the problem with a liability rule, for a liability rule to work, you have to actually estimate harm.
You have to have whoever the third party that's going to say, once you violate this right, this is the check you have to write either to the government or to the harm party, depending on the way the liability rule is administered.
For it to work efficiently, you have to get the harm right.
And if the harm is estimated incorrectly on average, then you end up in the wrong place.
Who has the best information about the valuation of those entitlements?
Well, it's the parties.
So if you let the parties bargain, you don't have an information problem, and that's where the Coasean solution is likely to be superior.
And so in what ways that sort of militates toward a property rights treatment of privacy, I think.
You know, that, okay, if we assign the rights and let the parties bargain because...
Transcription by CastingWords
Let the market work so we can have this information come out.
That's the beauty of the market, this information comes out.
But if transactions costs are too high, this isn't going to work.
Now one area where I think that maybe transaction costs are sufficiently low for this, and maybe where we see this is in the area of privileges, like doctor -patient privilege.
I have one doctor I go and deal with.
I can contract.
Now we have HIPAA overlaying that and everything, but I could conceivably contract.
We're good to go.
We're good to go.
We're good to go.
property theory and with Jim and Adam.
Is, you know, maybe these sort of privilege laws gets close to a propertization of privacy because they're really strong, you know,
the consumer or the patient holds them.
But in the digital ecosystem that we mostly, where most policy debates, I think, occur, where a lot of what we talk about in privacy, I think the transactions costs are just prohibitive for...
Let the market work, as much as I think that that's the solution.
And Jane alluded to some of these, and I'll just drill down on a couple.
I think one of the biggest problems is this idea of joint production.
I mean, I think if I go to an app and that information of what I do on the app, what I click on the app, and all the stuff that the app collects...
It's not my information.
It's jointly produced.
I'm interacting on your property.
You're observing me.
I'm doing it, so I know I did it.
You know I did it.
Why that ownership would vest with the consumer is unclear to me.
You know, so I think about this as an example that's in the news and in the court over there in Alexandria and down in Texas now.
Google Ad Tech, right?
And so Google sets up this ecosystem where it's an extraordinarily complex ecosystem.
I'm simplifying it a lot, but, you know, they set up this Ad Tech ecosystem where everyone that's part of the Google Ad Network, all these publishers, have certain code or cookies on their site that they Google.
Google takes this and they have an idea of where consumers are going and put them into bins.
So on the other side, if I'm an advertiser and I say, hey, I want somebody in their 50s who likes tennis, where can I, I want this ad to go to those people, I can find those people.
Now, in that case, why Google would not own that information is unclear to me in a property rights, because yes, I as a consumer went to the website and clicked on some tennis stuff But the New York Times or CNN or ESPN owns that information as much and if they decide that I want to be part of a collective broadly, that's what the Google network is,
and share my information so Google can find out so I can make more money for my ads and have a better website, it's unclear to me.
Why that property right would be vested in the consumer in that case.
Further, if we think about, and I think about this with the Carpenter case that you talked about, and maybe the...
I've added production to this.
I've added value to this information.
I'm the one that has come in and put my...
expertise, and so I should be rewarded for this is what Google did.
I mean, they said okay well look, we can create this network, we can put code and we can come up and we can increase your.
You know the, the value of what you sell.
You know six to 10x, depending on what your and, and then you can have better websites and consumers are all better off, whatever that, that's the the, the idea here.
So so that's one another and I'll focus on is, you know there, Transaction collective action problems is what I call it because, at the margin, Any consumer's piece of information is approximately equal to zero.
Like, I don't really care.
If Jane came to me and said, hey, I'll sell you all my browsing history, I mean, maybe I would buy it because I'm just curious, but if I were an ad tech firm, I'm not buying the marginal value of that one little piece of information is essentially zero.
And I think this is why we've had the long promise micropayments.
It's been around for a long time, this idea that, well, and we probably have the tech to do it, where I could pay, a website could come and bid on my data, but the problem is that at the margin, that individual piece of data...
Pretty much equal to zero.
I think that's another area where the transactions costs are just too high.
I'm sorry, Jim, or you.
I'm laughing because this is the chance to bring crypto into the discussion.
You can't not have crypto in a tech discussion.
Micropayments.
No, no, I'm just kidding.
Go ahead, Jim.
Yeah, because now I'm really getting it.
I have tried to understand blockchain and crypto.
But again, I'd love to learn about that as well.
So I think there's, you know, that's just kind of a transaction cost.
Then we get into the notion of consent.
And it's interesting, again, getting a little bit out of my area of law, is the extent to, I mean, consent at least, you know, I have a long background at the FTC in consumer protection, and I think of, you know, clear and conspicuous disclosures in the FTC cases that say, well...
You may have said this, but it's on page seven of your privacy term, so that doesn't count, right?
And I'm, again, grossly oversimplifying what's going on there, but maybe at the common law, that does count.
Like, if I click yes, it's going to be okay.
But, you know, what does consent mean in order to transfer, even leaving aside transaction costs?
Final thing I would focus on, and Jane talked about this, is externalities in this ecosystem.
And I think they're...
Pretty large.
I mean, so first I talked about this before that, you know, if I were to opt out of being tracked, the value of targeted ads goes down, the value of web, you know, the money that comes in to my app or to the website goes down, and that reduces the quality of content.
There's a free rider problem there.
You know, we all like privacy, so I'm going to say, you know, using the Apple ecosystem as an example, and that's not government regulation, but I don't track me.
Well, that means all the other apps.
That means that, yeah, I don't get tracked, but apps are starved of money.
And there's a lot...
Jim talked about the empirical evidence...
There's a host of papers that pretty much to a one show that when you turn off the targeted ad, you reduce the quality or reduce the output.
And maybe that's a trade we want to make, but it's There's an externality there.
There's also kind of the related externality, and I think Jane alluded to this a little bit talking about privacy, and this was front and center in a recent FTC case on BetterHelp.
When you use an algorithm, so maybe let's say that I've consented into, I've said BetterHelp.
Which is an online counseling service.
I told BetterHelp, let's say, that it's okay to use my data, and it's okay to use my data to target ads.
And what BetterHelp was in trouble for was, among other things, was taking data, a customer list, sending it to Facebook, and this is what...
It happens all the time.
Find me more people.
Target ads to the people on my customer list and find me more people that look like people on my customer list.
So Facebook uses its algorithm to find more people.
So the negative externality there, at least according to the FTC's theory of the case, it was a settlement, never litigated, is that people could be discovered because you're running it through an algorithm to discover people who might want mental health services.
And so maybe that's a sensitive area.
So that's a privacy violation.
But there's also the flip side to that, is there could be a positive externality.
You're discovering people who could potentially need mental health counseling, and now they find an online, right?
So there are big externalities when we use data, say, I've consented into being in a training set, and that training set's going to be used to make predictions to find sensitive characteristics for the rest of the world in kind of an AI context.
So that's, you know, sort of another reason.
So my punchline here is...
I normally would say I'm really cognizant of them going over time, but since everyone else did, I don't care.
So the punchline here for me is, again, this is my economist, is I think that the way I would, what are the solutions?
I mean, there are things that...
I think that this sort of property and trading, calling it property, in some ways I don't really know whether you call it property or say it's governed by a liability rule, if that's just nomenclature.
And I say this not always, I'm actually kind of honestly asking the question, is if we end up, whether we say that you have a property right in this or not, or whether we call it a liability rule and let common law or the FTC enforce certain...
Norms if we don't end up in the same place and it's just a matter of terms because you know so I think kind of the solution is I'd like to see you know a market -based allocation for privacy and how do we get that?
I mean one I think you do need remedies what I would call in another plug for a paper I've done with Bruce Kobayashi on efficient harm -based remedies in this so if you can actually make firms pay for privacy harms,
externality harms they cause and make them pay for lying about what they're going to do which is what kind of the FTC is in the business with with their deception and unfairness And when I say make pay, the FTC can't really make them pay in some areas now after the AMG case, but that's a different panel discussion maybe we'll have someday.
So harm -based remedies, and again, I mentioned the information problem.
They're not ideal because we have to estimate privacy.
That's difficult, but I think given the problems of, you know, kind of making, turning this into a Kosian, the transaction costs swamp.
The information benefits, so I'm happy having a third party estimate the remedies here.
So what do we get with that?
Then maybe we get competition where we see unraveling, where firms then compete to say, okay, and we see a little bit of this.
This is one area some of my research has been kind of interested in.
To what extent do we see competition over privacy?
And I don't know if that can work in a regime where consumers have this right and you have to bargain it from them.
Instead, I can sort of differentiate myself, and we see this with Apple and the Google ecosystem, or DuckDuckGo and Google, right?
Where we see, I'm going to offer a different set of promises with use and collection.
And you're going to get a different set of value from that.
And I'll let consumers self -select into that.
And we do that with contract, right?
And we do that with a background of you can't lie about what you're saying.
And if there are severe externalities, maybe we bring in something like FTC's unfairness and say you can't do that.
Now, we could talk a lot about where the FTC's unfairness has gone.
And I agree with Jane that both GDPR and the FTC's recent settlements and the mobile wallet and other cases have We're good to go.
We're good to go.
I think the market should sell.
We should leave this to competition in the marketplace with harm -based remedies for lying and severe externalities.
James, your presentation was very, very long.
I appreciate it.
There will be no end of discussion, even just going from my questions.
I want to do a question or a comment to sort of initiate discussion amongst all of us, but all three, please join in with what you think is pertinent.
I'll invite the audience to tweet.
Questions or comments to AskAEITech.
As an alternative, because we're tech here, put your question to your favorite AI, then submit the answer to Kate by encamping.
The email address is on the web page for this event, and we'll read out the answer.
And then maybe debate with AI what it gets.
I'm joking a little bit because these hashtag things aren't all that well used very often.
A quick comment on yours, James, and then a little bit about Coast that I think we might be able to understand each other a little better.
One...
The thing I thought I tried to do well in the paper was to articulate that there are distinctions among property rights and they are divided among parties in terms of service and privacy agreements.
So does Google have the property?
It has possession.
Does it have the right to exclude?
No, that's with the consumer.
So I've tried to articulate, because what I'm trying to do is explain marketplaces we have, I'm trying to articulate where Google has many rights, rights to use, and so on and so forth, but not, it doesn't have the right to publish your Jane's, let's make it Jane, because you used the example,
it doesn't have the right to publish Jane's search history.
So that division, for me, that division among property rights helps, sort of allows property law to explain all this.
And so we're not Starkly differing.
And I guess that kind of brings me to the Coasean bargaining question where you and Jane both talk about the high transaction costs.
And I'm not so good on Coase.
We're all doing this wonderful thing.
We're a little out of depth in each other's stuff, which is the right way to do a conversation like this, I think.
But I kind of believe that Coasean bargaining is working.
It's happening.
Because people obviously sort of inherently have the right to control, they do control, whether there's a formal property right or not, they do control what information they share, often by disuse of particular sites and services.
And then when they do share, that's the bargaining happening.
They are granting the rights as described.
We have to formalize it by saying it's described in the privacy policy and the terms of service.
But they're granting those.
So the transaction costs seem to me exceedingly low.
Can I ask a hypothetical?
What if in the long privacy policy the company that you're directly transacting with gives itself the right privilege to Sell your data, whether it's geolocation data, whatever it is,
to a data broker that can then license it.
So my sense is that you would think that too, like broadcasting it publicly, would also go against your property interests.
Is that correct?
I think this might help differentiate where James and I are.
Because if that doesn't bother the property sensibility, then I don't think that you're in line with what most people think when they say, that's my data.
So that's my information.
Handily, that brings me to a question I had for Adam, who I was going to make our contract scholar in addition to property.
Because I'm wondering in this new environment, it turns out I learned contract as a classical I assume not.
Under the old classical rules, there were gap fillers where there weren't actual meetings of minds.
And the gap fillers ended up being what's commercially reasonable.
It ended up being the person who provided the language would have their interpretations met with a jaundiced view in courts and things like that.
So if there were a term snuck in that said, and we're going to put all your information on a billboard.
And nobody read it.
And that was not commercially reasonable.
That term actually wouldn't be part of it.
But I think once you're saying that the rule is reasonableness, I win.
Because then we're talking about some objectively reasonable third observer asking whether it's reasonable or not.
Well, I don't know if that's winning.
Maybe that's all of us winning.
And there's this interesting, I'm surprised that it's a little understudied dynamic where In platform economics, there is a gross negotiation between platforms and consumers,
not a negotiation in fine.
It's silly, of course, the idea that each consumer would read the privacy policy.
It's silly that each consumer would go negotiate with the business end of a platform.
You have advocates.
You have politicians.
You have newspaper reporters and investigators going out and saying, look, AT &T put a term.
This actually happened about 15 years ago.
AT &T put a term into its terms that said, we own all the information that crosses our platform.
And wah, wah, wah, that got real news, and the term dwindled away.
It didn't go away right away, so my story isn't perfect, but there is this...
So, should people use Facebook?
They talk to each other.
I learned to use Amazon when my dad recommended it to me 100 years ago.
And that's all part of this broad negotiation.
And people select or deselect services.
That's the negotiation.
They select or deselect their use of services.
I'm not posting my children's pictures, or I'm not posting that I'm on vacation now, or all kinds of different ways that people use services.
And that's low -cost bargaining over the trade of information to me.
So Coase is actually satisfied, in my view.
I don't like the term "gap fillers." I'm not competent to weigh in on the Coasean analysis.
That's definitely out of my depth.
That suggests that there's holes in the law.
And I think one of the strengths of Jane's paper is her calling our attention to the role of presumptions in the law.
So let's call them background presumptions.
So in this context, usages of trade and customary norms within industries provide sort of background presumptions which absent...
A particular contractual arrangement between the parties establishes where their rights are ab initio, and then, on the common law way of thinking, they're free to alter that with respect to their particular transaction in a contract.
Now the difference, as you say, is since at least the 1970s, the Second Restatement Project, we no longer require them to actually come to an agreement.
And there are problems with that.
But the second restatement also has some escape valves in what we might call egregious cases, the doctrine of unconscionability, the doctrine of duress, which allow us to say, call them liability rules, if you like.
In certain circumstances, an impartial observer, like a jury, Would be authorized to say that this is not one of those rights which people should be deemed to have given away,
and there could be all sorts of reasons for that which have nothing to do with the contract itself, but are part of those background principles of the law.
James, does it have any appeal to you that the bargaining is going on in the form of people's actions?
And I think, this may be silly that it all comes down, but you think about the...
I mean, I think about this as where is the, you know, when we think about who has the right, do you have to bargain it away from the consumer?
In some ways, it almost comes down to opt -in versus opt -out.
Like, in the sense, do I, and it also shows how ludicrous GDPR is in some ways, right?
Or the CCPA, because you put these, don't sell my data, you know, and everyone...
No one uses that or you have the GDPR big cookie banners and everyone clicks, you know, the GDPR collection acceptance rate last time I looked was, you know, in the high 80s to low 90s, right?
So it's not the people, is that what defines, I guess maybe what I'm struggling with is what different, and I mean this, is what different distinguishes what we would call, when I think of a property right, I think, and again,
this is my Not being a property rights scholar or theory, but thinking of this as an economist in kind of a Coasean context, it's you need ex ante permission to invade.
And that if I do invade, I can call the sheriff to come and forcibly remove you.
So what does that mean in a... Privacy context.
It almost comes down to the remedy.
It's injunctive relief versus damages.
What is the distinction in...
What distinction, I don't know, if you and Adam are, what are you drawing here?
And Jane looks like you're not.
Yeah, because I actually am not even sure that it's as simple as, you know, opt -in versus opt -out and assumed, you know, presumed reasonableness of contract terms.
Let's take this to an example where there is not a direct relationship yet.
You know, so if I am observing right now, Peter, sorry.
To pick on you.
That he is wearing a tie and a gray suit.
We have no opportunity to contract.
It would be onerous for us to do so.
And yet, maybe I'm even stepping away from Coach for a minute.
I'm going to make a sort of deontological point here.
I have the liberty to go tell whoever I want about that.
And so on some level, I guess what offends me about treating this like... intellectual property and treating all possible information as something like intellectual property is that when we're talking about an idea that either is not yet fixed in some sort of format,
doesn't have that labor that goes into it to create a work, or alternatively that the observer, not the observed, but the observer puts that labor and work into to make something that's more commercially viable.
Saying that that Product that's now useful for multiple reasons should be controlled by the person who is being described runs against...
Yeah, runs against, I think, not just all of this law and economics stuff, but even just practical sensibilities.
Yes, it would also be silly, and that's maybe a weakness in my paper, and we've talked about this some, is that you actually have to shroud something.
I would argue that it's a unit of property, but it's common property or license to all.
I forget if it's in the paper, I often talk about the fact of wearing a yellow hat.
If you wear a yellow hat inside your house, you can make that your own.
And not share it.
Maybe sell it to James because he's going to apply it to your credit risk.
But you step outside and the fact that you're wearing a yellow hat is either common property or licensed to all.
It might be precisely characterized.
It's basically the mixing of labor.
The work you do to shroud information, this is in Lockean theory, the work you do to shroud information is what makes it your own.
You can shroud it by going inside your house and pulling the blinds.
You can shroud it by entering into a contract where others promise to keep his butt, walking out on the street dressed as Peter is or wearing my proverbial yellow hat.
You don't have that claim to draw that.
Well, okay, so then what about my browsing data that everyone's so interested in?
Why can't that be seen as equivalent to walking around the street?
By the way, and I think that if the company did just put, you know, if Google did just go ahead and publish my browsing information, I do think that I would have a claim there, but it's based on...
Well, the common law solves this problem.
So when Peter shows up at a public event, he's literally engaged in an act of publication of his suit.
And he has thereby relinquished his rights into the commons.
I don't do that with respect to my browsing history.
Well, you say so.
That's just an assertion.
How do we know that?
Because it's not an act of publication.
It is.
Your computer is sending packets to Google servers.
How is that not the same as...
It's a bailment.
It's an entrustment to Google.
It's not like an announcement.
I see it the way Adam does.
Your ISP is promised to confidentiality.
Google is promised to confidentiality.
When did they promise that?
It's in their terms.
Okay, but what if they weren't?
This is my point.
If they weren't, I would switch ISPs.
And people would hear a lot about it, which is what essentially happened in the AT &T matter 15 years ago.
James?
Maybe we've moved past this, but I would just say that my... James' hypothetical about My view would be that where I see the property theory would be that he would then have a veto right over Jane publishing this.
And that's what I mean by the remedy.
That he could enjoin Jane and Jane has to bargain ex ante in order to get that right.
And that to me in...
Maybe the privilege situation makes a lot of sense.
Transaction costs are tiny.
Maybe you could do that in a one -on -one, very low transaction cost, but in the sort of ecosystem that we've been talking about, the data brokers.
That seems, you know, intractable.
That said, it sounds to me that that's not what you're talking about, Jim.
You would not say that a property rights theory would give Peter a veto right.
That he would have to, Jane would ex ante have to get his permission in order to use that information.
Then maybe we're not disagreeing at all.
Maybe not.
That's bad for ratings then.
We'll do some Q &A.
We've outed someone already.
I've got some online stuff I'm happy to share with us too.
Thanks everyone.
This was a wonderful discussion.
Since I'm the Peter wearing the gray suit, I'll take the privilege.
Of making a comment.
One is just acknowledging all of you for really one of the better conversations on this question I've heard in my life.
So thank you.
Obviously from the conversation, I think you can slice it up as property rights, as Adam and Jim point out.
Although what you're really kind of doing is inching the property, you know, the bundle of sticks over toward the tort world.
Or you can, as James and Jane highlight, don't begin with this conception of an individual right to control personal information.
And then what often happens, and I think most, I want to say, liberal Privacy scholars, which is 99 % of them in academics,
begin with the Jane and James approach, which is kind of a more tort -based concept, and then they end up with a really strong individual right to control and exclude.
So what I'd like to highlight and comment is what we're really debating is a narrative.
A story.
We're talking about what story we begin with which informs our intuitions.
And the story I'd like to begin with, and I often begin with, is the story about property as beginning privacy.
And I say originally privacy was property, which is Adam's point.
I don't want to get into debates about the Constitution.
You can go back to the Reformation, where the first recognition of, you know, people in the Middle Ages didn't think they had a right to keep their thoughts to themselves.
By the time of the Reformation, everyone gets focused on this, and then you start seeing the courts recognizing property rights in context where there's a very strong intuition that you don't want the government knowing what you're up to.
Right.
What Jane's pointing out, and I think James too, is that there was a transition where we went from property to a different model.
You see this in the CATS versus United States case of the reasonable expectation of privacy, and you see it in the fair information practices, the development of the fair information practices,
where you're moving away from a control model to a shared management.
Of what's basically a social resource.
So the narrative I'd like to push out is this, which is when property, when information was on paper, the individual could control it, you could put it in your pocket, you could lock it, and the courts were respecting that.
Diaries were protected and so forth.
You can have it in your house, you can't come into your house to get it.
You can't use it to prosecute people.
Right to remain silent, and so forth.
When information became electronic and in networks, it really became more like water flowing in a river.
And when you dam a river up to get electricity, you don't want to be finished pouring the concrete before you ask how the salmon are going to get upstream.
And what I would push out to this conversation is it's still a very binary conversation.
James talked about an ecosystem.
But when we talk about ecosystems, we're not really talking about individuals in a binary relationship negotiating the economic exchange of whatever that is, whether it's property or something else.
We're talking about a social interest in how the information is managed so it benefits the most people.
Now, historically, that could be done through a property right.
When information was on paper, I'm not sure that still works quite so well.
That's just my opinion.
But the narrative, what's missing from this narrative is, let's just take government, since I work for the government with the Justice Department.
But when you begin with a narrative, the question is, what about the other people with an interest in the information?
And I could use law enforcement, national security access to personal information to keep us safe and to keep our...
But you can also use, say, healthcare.
Research requires disclosure of adverse events, irrespective of the individual's consent.
Now that's caused havoc with the GDPR because it's a good example of something that tries to back into a property model after it begins with something that looks more like what Jane and James would approve.
Adverse events have to be disclosed to regulating authorities to make sure that drugs are safe.
Because after a drug is approved, you often discover other things about a drug that can kill people.
So you have this continual monitoring process.
What about terrorist watch lists?
Those are things that we've developed to keep ourselves safe.
But we're not talking about the individual's interest or the institution's interest that holds, usually, the data.
We're talking about a wider social interest in the information and how the information is managed as a social resource.
So that's the story I would push out to you as an alternative way of thinking about this problem and let you all respond.
Thank you, Peter.
I actually want to take another question or comment while this...
Not a comment, a question.
The question is, the old canard is that possession is nine -tenths of the law, and an issue is who possesses this data, and that is a very complex technical question.
I'm wondering, it seems, at least with regard to digitalized...
Information privacy.
It's a technical problem and it'll probably have a technical solution.
And there are some out there.
I know that there's a company called INRUP that proposes a wallet of data and for sure the microtransactions would be very micro monetarily.
But if a large number of people opted into that approach for whatever reason, It could begin to be a market, whereas it wouldn't be now.
Do you really think that it is indeed a technical solution, that we're not quite there to have these conversations yet because the purported owners of the property, one's private information,
the possession aspect has not been perfected by far yet?
Thank you.
I thought Peter's was a presentation in and of itself, but responses to both are welcome now.
Well, I would say, and this is responsive to both Peter's comment and a question that James put, is I don't think this is just a semantic difference.
I do think it matters whether you start with legal concepts or expert -driven policy analysis.
And I think you're actually...
This is...
I tend to be confident that you're going to end up with better results if you start with legal concepts that have worked in other contexts because they've proven themselves as being effective.
So I do think that our fundamental law has ways of answering these sorts of questions with respect to social interests in data.
We have doctrines which require, for example, probable cause before invading these property rights that are protected by the Fourth Amendment and other legal doctrines.
And that seems to me a relatively We're good to go.
And this is a very complex institution.
Within the joint ownership, neither party has the right to exclude each other, but all the parties within the joint ownership have the right to exclude outsiders.
That seems to me to map perfectly well over joint production of intellectual resources, except in the context where...
The service provider has provided almost all of the value, and then you bring in another property doctrine, the doctrine of accession.
If I go and trespass on your land accidentally and cut down your trees and then turn them into furniture, I now own the trees.
Because why?
Because I've produced all the value in the trees, though I owe you a duty of restitution for the value.
Seems to me you could do the same thing with the ESPN app.
I'm going to start to be serious about time because there's an online question that I want to get to.
Before we close, having called for them, I want to...
No, I don't know if it's a response.
It's probably another question.
I feel like I'm deposing Adam here.
With the accession doctrine that you just talked about, though, You say you have to compensate, so ESPN or Google Ad Tech.
How do you compensate the consumers?
The fact that they get free access to ESPN apps?
Because that comes down and also relates to this micropayments.
In some ways, we already have micropayments.
It's you come, you sign my terms of service, I collect all this data, give it to you free, which is a two -sided...
I think there is some promise in the data locker, data wallet idea in the AI era, because that's one area where there might actually be greater...
You know, greater compensation to the consumer than they're already getting from the services that are collecting the data.
So maybe we'll see that.
And I'll say with response to your question, calling it an old canard, possession being nine -tenths of the law, I really like that characterization because possession...
And you even see courts use the word possessory.
The Colorado Supreme Court came down with a case not too long ago where it found that accessing somebody's Google Maps history
Let's turn to this online question.
Doing this is a little bit like juggling torches and running chainsaw, because I see a question that looks well -formed.
I don't know if it is good, but I'm going to read it out, and let's see if it is.
It seems worth considering Arrow's Impossibility Theorem, which highlights the challenges of aggregating individual preferences into a collective decision that satisfies a set of fairness criteria, which can be debatable.
It seems like we might be able to apply this to the fact that there are such diverse preferences for the use of personal data, so how can a property rights approach balance these conflicting preferences individuals have for privacy when the collective value of data when used for public goods?
My answer to that is quickly, yeah, tough.
There are going to be some holdouts.
I'm very individualist, and so where it might undercut I'm a bit more of a collectivist, obviously.
And I guess I also somewhat reject the premise that, like I said in my presentation, I think people have different assumptions about whether they will be...
Okay.
I'm just not, I mean, you know, we think about, I don't know how much aggregating preferences really matters here, because we're talking about individual preferences, right?
I mean, so we think about arrows and possibility theorem, we think about aggregating preferences, we think to, you know, what is the...
We are at time and I want to be respectful of people's time, but...
Thanks for inviting me.
How about that?
I didn't mean to just collect accolades here.
I know, but I better stick with that because otherwise I'll look better.
Anyway, thank you very much, Jim.
I learned a lot from this.
I'll go a little bit long to compliment AEI and its staff.
We have...
I have my microphone on my right lapel and you two have your microphones on your left lapel so that the panel discussion and the audio work together seamlessly.
That is one part of the excellence and professionalism that goes into putting on these events.