Lawfare: Data Isn’t Property. It Doesn’t Have to Be.

Lawfare: Data Isn’t Property. It Doesn’t Have to Be. by Mailyn Fidler:

In 2018, the Supreme Court ruled that Americans have a reasonable expectation of privacy in at least some of their cell phone location history data. The dissenting justices, however, did not agree. Many of them focused on the fact that the data in question isn’t an individual’s property. They argued that expectations of privacy are derived, in many circumstances, from ownership interests. And because a person cannot use her location history as she wants, nor can she sell or dispose of it as she likes (which are all things one can normally do with property), data isn’t property.

This Fourth Amendment property salvo was not the first: The Court has been wrestling with the competing notions of property and privacy as bases for Fourth Amendment protections for decades. But the current composition of the Court, along with its broader skepticism of privacy-based constitutional rights, as in Dobbs v. Jackson Women’s Health Organization, suggest that the pendulum might be swinging toward property as a basis for Fourth Amendment protections.

If the strictest justices’ property views win, many digital law enforcement practices might be given constitutional carte blanche. Law enforcement would be free to engage in practices including the one at issue in Carpenter v. United States, cell phone tower dumps, stingray deployment, and more, all warrantlessly. As many observers have documented, these data contain deep patterns of private information.

I offer an alternative: a flexible, property-informed approach as the basis for Fourth Amendment protections. In this approach, Fourth Amendment protections apply when one has at least a situational right to exclude—that is, a right to exclude certain actors in certain situations, even if that right is not enjoyed in all contexts. Having only this one stick of the “bundle of sticks” that make up a traditional property right is sufficient to trigger Fourth Amendment protections, even if it is not sufficient to constitute a full property right over the thing to be searched. Indeed, one may have a situational right to exclude over something that is not itself real or chattel property. In other words, when the world is allowed in, so is the government. But if an individual retains any right to restrict someone, even absent any other indications of a property right, Fourth Amendment protections apply.