The debate on internet privacy, and what companies can do with our online information, was renewed recently, with the House passing a bill that would roll back the Federal Communications Commission regulations created by the Obama administration.
The rules, that were set to go into effect this year, would have required broadband providers to obtain permission to collect information on their customer’s shopping and browsing habits and app usage.
What makes this recent news tricky for libertarians, is that deregulation may have given companies the ability to steal private property. In the age of the internet, it is more difficult to define what is considered property to the consumer and what rights broadband providers should have when it involves their customer’s information. On the one hand, every citizen should have the right to privacy, but prohibiting this places a regulation on a market.
To begin, we must understand what defines property. The non-political definition, provided by Merriam-Webster, is “something owned or possessed” while the more legal definitions are “the exclusive right to possess, enjoy and dispose of a thing,” and “something to which a person or business has a legal title.” Personal property is then often divided into tangible property and intangible property, with the latter including intellectual property.
So, the big question becomes “is our personal information considered intellectual property”? I would argue that it is, but not everything considered personal information is a person’s property.
In 2002, Cable & Wireless Inc. was sued by Mr. Rotstein when they would not return his phone number after he was terminated. Rotstein’s company was paying his phone bill, since he primarily worked from home, and the court ruled that whoever was paying controlled the right to use the number, since it is not tangible property and cannot be converted.
Based on this, one could assume that they own their phone number, but this is not the case.
In Teleco, Inc vs. Southwestern Bell, Teleco claimed that Southwestern Bell acted in tortious conversion (basically, wrongful use that is not theft) when they turned off Teleco’s phone service. Southwestern Bell ceased providing service after Teleco did not heed their warning of setting up their phones by direct electrical connection, which was against the Oklahoma Corporations Commission.
The courts ruled in favor of Southwestern Bell because they did not take possession of Teleco’s personal equipment; also, since telephone service is not tangible property, it is not able to be converted and they can cease service.
Essentially, phone numbers are property of the service providers, but whoever is paying the bill has right to control the number as they please (even though the FCC does have regulations forcing privileges of consumer ownership).
This is the same for e-mails, as the owner of the domain name legally owns the e-mail.
For both phone and e-mail services, the consumer is essentially leasing the identifier and agrees with their providers that they may use that number or e-mail if both parties remain under contract together.
Realistically, phone and e-mail providers could sell our information to other companies, but most include clauses in their contracts stating they won’t do this, because they would lose those customers who value their privacy.
Whenever a house is bought, common sense would dictate that the owners of the home own their address, but this is also not the case.
Whenever new property is built, the local city planning and zoning commission decides the number placed on the building; and since the government owns most of the roads, real estate developers must get approval for any proposed street names.
Any suburban grown American would be able to talk about how the numbering systems of their neighborhood made no sense. Why couldn’t the numbering for each street begin at one and continue chronologically for every house? Because of today’s government rules and committees, a home owner or developer doesn’t even have that option.
This is reinforced by government ownership of the postal service. To change the address of your home, one must go to their local post office. In fact, the United States Postal Service essentially owns a person’s mailbox, as federal law considers a mailbox federal property to protect citizens against vandalism.
So, Americans are leasing their mailboxes to the government for a service they may not want or use. This all shows that a person living in the United States is prohibited from having any property rights to their address.
If I don’t own my phone number, e-mail, or mailing address, what do I own?
Citizens may own their name and likeness through our current trademark laws (though, I would argue that these are things we should inherently own).
Former Cleveland Browns quarterback, Johnny Manziel, trademarked his name and likeness in college and made lots of money in trademark disputes over Johnny Football t-shirts. The majority of citizens are not famous enough to have companies make products using our likeness, but ownership of our names and likeness fall squarely in line with the libertarian belief of bodily autonomy.
Our search and browsing histories is personal information with the largest amount of grey area.
The legal cases involving phone providers would suggest that internet service providers own our browsing history, since they provide the ability to do those actions; but if someone had a person constantly monitoring their actions, that would be considered stalking. The only difference between ISP’s and stalkers is that when a person purchases internet, they probably have signed an agreement to have the company monitor their personal information.
So, I would claim that citizens do have the right to ownership of their browsing and search histories, but if keeping that private is something one values, then the contracts of usage must be read.
Access to our personal information is a simple matter of contracts that we make between ourselves and the businesses whose services we decide to employ.
Government regulation of business ultimately ends in increased prices and the driving out of competitors. Even though most ISP’s already have a clause that they will not sell sensitive information (most also allow a customer to opt out of monitoring non-sensitive information), the Obama administration’s regulation was a defense of our property rights over that personal information.
* Luke Henderson is a composer, economics enthusiast and educator in St. Louis, MO and a contributor to The Libertarian Vindicator. He is a budding libertarian and joined the party in 2016.
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