Moore - Intangible Privacy

Intangible
Property:
Privacy, Power, and Information Control*

ADAM D. MOORE

Introduction
It is an obvious truism that the proliferation of computer networks
and the digitization of everything not obstinately physical1 is
radically changing the human experience. As more individuals
obtain access to computer networks such as the Internet or the
World Wide Web—the official word for this is to become “wired”—
digital based environments and information have come to play a
central role in our everyday lives. Our money is stored and
transmitted digitally, we listen to CDs where the music is recorded
and played digitally, there are now digital cell‐phones, cable
television, and musical instruments. And all of this lies outside of
the bit streams of 1’s and 0’s that make up computer networks,
software programs, and operating systems. Many claim that the
future holds information that cascades, not just through a PC, but
across all forms of communication devices—headlines that flash
across your watch, or a traffic map popping up on a cellular phone.
It means content that will not hesitate to find you—whether you
have clicked on something or not.2 The integration, by digital
technology, of what used to be disparate forms of communication is
radically changing how we work and play.
At the center of this communication revolution is the control of
information—who has it, how can it be gathered, can databases be
owned, should information be “pulled” by users as a request or
“pushed” to users who have shown interest? These concerns have
obvious import into the areas of privacy and power. We each leave
“digital footprints” that can be tracked by data mining companies
and used to create purchasing profiles, medical summaries, political
agendas, and the like. Moreover, this information is then sold to
direct marketing companies—who will then call, write, or in the
future, e‐mail us—government agencies, private investigators, or to
anyone for any reason. There used to be domains of a person’s life
that were totally inaccessible. A person’s home and bedroom,
notebook and hard drive, were all sanctuaries against the prying
eyes and ears of others. It is alarming that digital technology is
sweeping these domains away. Deborah Johnson accurately
captures this sentiment.

We have the technological capacity for the kind of massive,
continuous surveillance of individuals that was envisioned
©American Philosophical Quarterly, Vol. 35 (October, 1998).
Electronic copy available at: http://ssrn.com/abstract=1973736

Intangible Property / 2

in such frightening early twentieth‐century science fiction
works as George Orwell’s 1984 and Zamyatin’s We. The
only difference between what is now possible and what
was envisioned then are that much of the surveillance of
individuals that is now done is by private institutions
(marketing firms, insurance companies, credit agencies),
and much of the surveillance now is via electronic records
instead of by direct human observation. . . .3

The power of having such information should be obvious.
Companies will be able to (and are able to) directly contact
individuals who have shown interest in their products, or similar
products, or their rival’s products. And there are even more
insidious uses for such information. Imagine a child custody case
where one of the parents claims that the other is an unfit custodian
for the children because the accused parent frequently views
pornographic videos. Think of how governments could use such
information to control populations or political opponents, or how
insurance companies could use such information. In controlling
information, especially sensitive personal information, the stakes
could not be higher.
What follows is an explication and defense of a Lockean model
of intangible property.4 My goal is not to defend this model against
all comers—rather, I will begin with weak, and hopefully, widely
shared assumptions, sketch a theory based on these assumptions,
and then proceed to the more meaningful task of analyzing a
number of issues related to information control. Simply put, I will
argue that individuals can own information about themselves and
others. Moreover, I will make a case for limiting what can be done
with intangible property based, in part, on privacy rights.
Before continuing, I would like to note a few important
differences between intangible and property and tangible or
physical property. The domain of intangible property includes that
of intellectual property—the subject matter of copyrights and
patents (books, movies, computer programs, processes of
manufacture, etc.)—as well as personal information, reputation, lists
of facts, and the like. Intangible property is generally characterized
as non‐physical property where owner’s rights surround control of
physical manifestations or tokens of some abstract idea or type.
Ideas or collections of ideas are readily understood in terms of non‐
physical types, while the physical manifestations of ideas can be
Electronic copy available at: http://ssrn.com/abstract=1973736


modeled in terms of tokens. Intangible property rights surround
control of physical tokens, and this control protects rights to types
or abstract ideas.5
Intangible works, unlike tangible goods, are non‐rivalrous.
Computer programs, books, movies, and lists of customers can all
be used and consumed by many individuals concurrently.6 This is
not the case for cars, computers, VCRs, and most other tangible
goods. Intangible property, unlike physical property, is also non‐
zero‐sum. In the clearest case, when I eat an apple there is one less
apple for everyone else—my plus one and everyone else’s minus
one sum to zero. With intangible property it is not as if my
acquisition leaves one less for everyone else.
Another difference between physical and intangible property
concerns what is available for acquisition. While matter, owned or
unowned, already exists, the same is not true of all intangible
works. What is available for acquisition in terms of intangible
property can be split into three domains. There is the domain of
ideas yet to be discovered (new scientific laws, mapping the human
genome, etc.), the domain of ideas yet to be created (the next Lord of
the Rings, Star Wars, etc.), and the domain of intangible works that
are privately owned. Since it is possible for individuals to
independently invent or create the same intangible work and obtain
rights, we must include currently owned intangible works as
available for acquisition.7 Only the set of ideas that are in the public
domain or those ideas that are a part of the common culture are not
available for acquisition and exclusion. I take this latter set to be
akin to a public park.

A Lockean Model of Intangible Property
We may begin by asking how property rights to unowned objects
are generated. This is known as the problem of original acquisition
and a common response is given by John Locke. “For this labor
being the unquestionable property of the laborer, no man but he can
have a right to what that is once joined to, at least where there is
enough and as good left for others.”8 As long as the proviso that
“enough and as good” is satisfied, an acquisition is of prejudice to
no one. Locke argues that “Nobody could think himself injured by
the drinking of another man, though he took a good draught, who
had a whole river of the same left him to quench his thirst. . . .”9
While the proviso is generally interpreted as a necessary condition
for legitimate acquisition, I would like to examine it as a sufficient


condition.10 If the appropriation of an unowned object leaves
enough and as good for others, then the acquisition is justified.
Suppose that mixing one’s labor with an unowned object
creates a prima facie claim against others not to interfere that can
only be overridden by a comparable claim. The role of the proviso is
to provide one possible set of conditions where the prima facie
claim remains undefeated.11 Another way of stating this position is
that the proviso in addition to X, where X is labor or first occupancy
or some other weak claim generating activity, provides a sufficient
condition for original appropriation.
Justification for the view that labor or possession may generate
prima facie claims against others could proceed along several lines.
First, labor, intellectual effort, and creation are generally voluntary
activities that can be unpleasant, exhilarating, and everything in‐
between. That we voluntarily do these things as sovereign moral
agents may be enough to warrant non‐interference claims against
others.12 A second, and possibly related justification, is based on
desert. Sometimes individuals who voluntarily do or fail to do
certain things deserve some outcome or other. Thus, students may
deserve high honor grades and criminals may deserve punishment.
When notions of desert are evoked claims and obligations are made
against others—these non‐absolute claims and obligations are
generated by what individuals do or fail to do. Thus in fairly
uncontroversial cases of desert, we are willing to acknowledge that
weak claims are generated and if desert can properly attach to labor
or creation, then claims may be generated in these cases as well.
Finally, a justification for the view that labor or possession may
generate prima facie claims against others could be grounded in
respect for individual autonomy and sovereignty. As sovereign and
autonomous agents, especially within the liberal tradition, we are
afforded the moral and legal space to order our lives as we see fit.
As long as respect for others is maintained we are each free to set
the course and direction of our own lives, to choose between
various lifelong goals and projects, and to develop our capacities
and talents accordingly. Simple respect for individuals would
prohibit wresting from their hands an unowned object that they
acquired or produced. I hasten to add that at this point we are
trying to justify weak non‐interference claims, not full blown
property rights. Other things being equal, when an individual
labors to create an intangible work, then weak presumptive claims


of non‐interference have been generated on grounds of labor,
desert, or autonomy.
As noted before, the role of the proviso is to stipulate one
possible set of conditions where the prima facie claim remains
undefeated. Suppose Fred appropriates a grain of sand from an
endless beach and paints a lovely, albeit small, picture on the
surface. Ginger, who has excellent eyesight, likes Fred’s grain of
sand and snatches it away from him. On this interpretation of
Locke’s theory, Ginger has violated Fred’s weak presumptive claim
to the grain of sand. We may ask, what legitimate reason could
Ginger have for taking Fred’s grain of sand rather than picking up
her own grain of sand? If Ginger has no comparable claim, then
Fred’s prima facie claim remains undefeated. An undefeated prima
facie claim can be understood as a right.13

A Pareto‐Based Proviso
The underlying rationale of Locke’s proviso is that if no one’s
situation is worsened, then no one can complain about another
individual appropriating part of the commons. Put another way, an
objection to appropriation, which is a unilateral changing of the
moral landscape, would focus on the impact of the appropriation on
others. But if this unilateral changing of the moral landscape makes
no one worse off, there is no room for rational criticism. The proviso
permits individuals to better themselves so long as no one is
worsened (weak Pareto superiority). The base level intuition of a
Pareto improvement is what lies behind the notion of the proviso.14
If no one is harmed by an acquisition and one person is bettered,
then the acquisition ought to be permitted. In fact, it is precisely
because no one is harmed that it seems unreasonable to object to a
Pareto‐superior move. Thus, the proviso can be understood as a
version of a “no harm, no foul” principle.15
Before continuing, I will briefly consider the plausibility of a
Pareto‐based proviso as a moral principle. First, to adopt a less‐
than‐weak Pareto principle would permit individuals, in bettering
themselves, to worsen others. Such provisos on acquisition are
troubling because at worst they may open the door to predatory
activity and at best they give anti‐property theorists the
ammunition to combat the weak presumptive claims that labor and
possession may generate. Part of the intuitive force of a Pareto‐
based proviso is that it provides little or no grounds for rational
complaint. Moreover, if we can justify intangible property rights


with a more stringent principle, a principle that is harder to satisfy,
then we have done something more robust, and perhaps more
difficult to attack, when we reach the desired result.
To require individuals, in bettering themselves, to better others
is to require them to give others free rides. In the absence of social
interaction, what reason can be given for forcing one person, if she
is to benefit herself, to benefit others?16 If, absent social interaction,
no benefit is required then why is such benefit required within
society? The crucial distinction that underlies this position is
between worsening someone’s situation and failing to better it17 and
I take this intuition to be central to a kind of deep moral
individualism.18 Moreover, the intuition that grounds a Pareto‐
based proviso fits well with the view that labor and possibly the
mere possession of unowned objects creates a prima facie claim to
those objects. Individuals are worthy of a deep moral respect and
this grounds a liberty to use and possess unowned objects.

Bettering, Worsening, and the Baseline Problem
Assuming a just initial position19 and that Pareto‐superior moves
are legitimate, there are two questions to consider when examining
a Pareto‐based proviso. First, what are the terms of being
worsened? This is a question of scale, measurement, or value. An
individual could be worsened in terms of subjective preference
satisfaction, wealth, happiness, freedoms, opportunities, et cetera.
Which of these count in determining bettering and worsening?
Second, once the terms of being worsened have been resolved,
which two situations are we going to compare to determine if
someone has been worsened? Is the question one of how others are
now, after my appropriation, compared to how they would have
been were I absent, or if I had not appropriated, or some other state?
Here we are trying to answer the question, “Worsened relevant to
what?” This is known as the baseline problem.
In principle, the Lockean theory of intangible property being
developed is consistent with a wide range of value theories.20 So
long as the preferred value theory has the resources to determine
bettering and worsening with reference to acquisitions, then Pareto‐
superior moves can be made and acquisitions justified on Lockean
grounds. For now, assume an Aristotelian eudaimonist account of
value exhibited by the following theses is correct.

1. Human well‐being or flourishing is the sole standard of


intrinsic value.
2. Human persons are rational project pursuers, and well‐
being or flourishing is attained through the setting,
pursuing, and completion of life goals and projects.21
3. The control of physical and intangible objects is
valuable. At a specific time each individual has a
certain set of things she can freely use and other things
she owns, but she also has certain opportunities to use
and appropriate things. This complex set of
opportunities along with what she can now freely use
or has rights over constitutes her position materially—
this set constitutes her level of material well‐being.

While it is certainly the case that there is more to bettering and
worsening than an individual’s level of material well‐being
including opportunity costs, I will not pursue this matter further at
present. Needless to say, a full‐blown account of value will explicate
all the ways in which individuals can be bettered and worsened
with reference to acquisition. Moreover as noted before, it is not
crucial to the Lockean model being presented to defend some
preferred theory of value against all comers. Whatever value theory
that is ultimately correct, if it has the ability to determine bettering
and worsening with reference to acquisitions, then Pareto‐superior
moves can be made and acquisitions justified on Lockean grounds.

The Baseline of Comparison
Lockeans as well as others who seek to ground rights to property in
the proviso generally set the baseline of comparison as the state of
nature. The commons or the state of nature is characterized as that
state where the moral landscape has yet to be changed by formal
property relations. Indeed, it would be odd to assume that
individuals come into the world with complex property relations
already intact with the universe. Prima facie, the assumption that
the world is initially devoid of such property relations seems much
more plausible.22 The moral landscape is barren of such relations
until some process occurs—and it is not assumed that the process
for changing the moral landscape the Lockean would advocate is
the only justified means to this end.23
For now, assume a state of nature situation where no injustice
has occurred and where there are no property relations in terms of


use, possession, or rights. All anyone has in this initial state are
opportunities to increase her material standing. Suppose Fred
creates an intangible work and does not worsen his fellows—alas,
all they had were contingent opportunities and Fred’s creation and
exclusion adequately benefits them in other ways. After the
acquisition, Fred’s level of material well‐being has changed. Now he
has a possession that he holds legitimately, as well as all of his
previous opportunities. Along comes Ginger who creates her own
intangible work and considers whether her exclusion of it will
worsen Fred. But what two situations should Ginger compare?
Should the acquisitive case (Ginger’s acquisition) be compared to
Fred’s initial state, where he had not yet legitimately acquired
anything, or to his situation immediately before Ginger’s taking? If
bettering and worsening are to be cashed out in terms of an
individual’s level of well‐being with opportunity costs and this
measure changes over time, then the baseline of comparison must
also change. In the current case we compare Fred’s level of material
well‐being when Ginger possesses and excludes an intangible work
to his level of well‐being immediately before Ginger’s acquisition.
The result of this discussion of bettering, worsening, and the
baseline problem is the following proviso on original acquisition:24

If the acquisition of an intangible work makes no one
worse‐off in terms of her level of well‐being (including
opportunity costs) compared to how she was immediately
before the acquisition, then the taking is permitted.

If correct, this account justifies rights to control intangible property.
When an individual creates or compiles an intangible work and
fixes it in some fashion, then labor and possession create a prima
facie claim to the work. Moreover, if the proviso is satisfied the
prima facie claim remains undefeated and rights are generated.
Suppose Ginger, who is living off of the commons, creates a
new gathering technique that allows her to live better with less
work. The set of ideas that she has created can be understood as an
intangible work. Given that Ginger has labored to create this new
gathering technique, it has been argued that she has a weak
presumptive claim to the work. Moreover, it looks as if the proviso
has been satisfied given that her fellows are left, all things
considered, unaffected by her acquisition. This is to say that they
are free to create, through their own intellectual efforts, a more


efficient gathering system, or even one that is exactly the same as
Ginger’s.
Overall, the structure of the argument that I have given is:

1. If the acquisition of an intangible work satisfies a Pareto‐
based proviso, then the acquisition and exclusion are
justified.
2. Some acts of intangible property creation and possession
satisfy a Pareto‐based proviso.
3. So, some intangible property rights are justified.

Support for the first premise can be summarized in three related
points: 1a) The Paretian Intuition—if no one is harmed by an
acquisition and one person is bettered, then the acquisition ought to
be permitted. This “no harm no foul” principle leaves little room for
rational complaint; 1b) A less‐weak‐Pareto principle would allow
predation and a stronger‐than‐weak Pareto principle would allow
parasitism; and 1c) A Pareto‐based proviso is consistent with the
view that individuals are worthy of a deep moral respect, that their
lives and lifelong goals and projects are not justifiably sacrificed for
incremental gains in social utility.
Support for the second premise can be summarized as follows:
2a) Intangible property is non‐rivalrous—it is capable of being used
and possessed by many individuals concurrently; 2b) The “same”
intangible work may be created and owned by many different
individuals concurrently (zero‐sum); 2c) The number of ideas,
collections of ideas, or intangible works available for appropriation
is practically infinite (this makes the acquisition of intangible goods
similar to Locke’s water drinker example); 2d) Institutions or
systems of intangible property may provide compensation for
apparent worsening that occur at the level of acts;25 and 2e) Many
creations and inventions are strongly Pareto‐superior, meaning that
everyone is bettered and no one is worsened.

Property, Privacy, and Information Control
Although I have made a case for granting intangible property rights
to individuals who satisfy the Paretian test this does not mean that
owners can do anything they want with their property. To take a
simple example, my property right in a Louisville slugger does not
allow me swing it at your knees, nor can I throw it at your car.
Property rights are generally limited by the rights of others. More


specifically, there is a prohibition of harm with respect to property
rights.26 This means that you can do what you want with your
property short of unjustly harming others. Furthermore, this
restriction—call it the harm restriction—fits well with the Lockean
model under consideration. The proviso, a no harm no foul rule,
allows individuals to acquire unowned goods. The harm restriction
limits harmful uses of those goods.
A second constraint has to do with privacy and information
control. Privacy may be understood as that state where others do
not have access to you or to information about you. I hasten to note
that there are degrees of privacy. There are our own private
thoughts that are never disclosed to anyone, as well as information
we share with loved ones. Furthermore, there is information that we
share with mere acquaintances and the general public. These
privacy relations with others can be pictured “in terms of a series of
‘zones’ or ‘regions’ . . . leading to a ‘core self.’”27 Thus, secrets
shared with a loved one can still be considered private, even though
they have been disclosed.
In an important article dealing with privacy, morality, and the
law, William Parent offers the following definition for privacy.

Privacy is the condition of not having undocumented personal
knowledge about one possessed by others. A person’s privacy is
diminished exactly to the degree that others possess this
kind of knowledge about him. Documented information is
information that is found in the public record or is publicly
available (e.g. information found in newspapers, court
proceedings, and other official documents open to public
inspection).28

The problem with this definition is that it leaves the notion of
privacy dependent upon what a society or culture takes as
documentation and what information is available via the public
record. Parent acts as if undocumented information is private while
documented information is not, and this is the end of the matter.
But surely the secret shared between lovers is private in one sense
and not in another. To take another case, consider someone walking
in a public park. There is almost no limit to the kinds of information
that can be acquired from this public display. One’s image, height,
weight, eye color, approximate age, and general physical abilities
are all readily available. Moreover, biological matter will also be left


in the public domain—strands of hair and the like may be left
behind. Since this matter, and the information contained within, is
publicly available it would seem that all of one’s genetic profile is
not private information.
Furthermore, what is publicly available information is
dependent upon technology. Telescopes, listening devices, heat
imaging sensors, and the like, open up what most would consider
private domains for public consumption. What we are worried
about is what should be considered a “private affair”—something
that is no one else’s business. Parent’s conception of privacy is not
sensitive to these concerns.
A right to privacy can be understood as a right to maintain a
certain level of control over the inner spheres of personal
information. It is a right to limit public access to the “core self”—
personal information that one never discloses—and to information
that one discloses only to family and friends. For example, suppose
that I wear a glove because I am ashamed of a scar on my hand. If
you were to snatch the glove away you would not only be violating
my right to property—alas the glove is mine to control—you would
also violate my right to privacy; a right to restrict access to
information about the scar on my hand. Similarly, if you were to
focus your x‐ray camera on my hand, take a picture of the scar
through the glove, and then publish the photograph widely, you
would violate a right to privacy.
Legal scholar William Prosser separated privacy cases into
four distinct but related torts.29

Intrusion: Intruding (physically or otherwise) upon the
solitude of another in a highly offensive manner. For
example, a woman sick in the hospital with a rare disease
refuses a reporter’s request for a photograph and interview.
The reporter photographs her anyway, over her objection.

Private facts: Publicizing highly offensive private
information about someone which is not of legitimate
concern to the public. For example, photographs of an
undistinguished and wholly private hardware merchant
carrying on an adulterous affair in a hotel room are
published in a magazine.


False light: Publicizing a highly offensive and false
impression of another. For example, a taxi driver’s
photograph is used to illustrate a newspaper article on
cabdrivers who cheat the public when the driver in the
photo is not, in fact, a cheat.

Appropriation: Using another’s name or likeness for some
advantage without the other’s consent. For example, a
photograph of a famous actress is used without her consent
to advertise a product.

What binds these seemingly disparate cases under the heading
“privacy invasions” is that they each concern personal information
control. And while there may be other morally objectionable facets
to these cases, for example the taxi driver case may also be
objectionable on grounds of defamation, there is arguably privacy
interests at stake as well.
Having said something about what a right to privacy is we may
ask how such rights are justified. A promising line of argument
combines notions of autonomy and respect for persons. A central
and guiding principle of western liberal democracies is that
individuals, within certain limits, may set and pursue their own life
goals and projects. Rights to privacy erect a moral boundary that
allows individuals the moral space to order their lives as they see
fit. Clinton Rossiter puts the point succinctly.

Privacy is a special kind of independence, which can be
understood as an attempt to secure autonomy in at least a
few personal and spiritual concerns, if necessary in
defiance of all the pressures of the modern society. . . . It
seeks to erect an unbreachable wall of dignity and reserve
against the entire world. The free man is the private man,
the man who still keeps some of his thoughts and
judgments entirely to himself, who feels no over‐riding
compulsion to share everything of value with others, not
even those he loves and trusts.30

Privacy protects us from the prying eyes and ears of
governments, corporations, and neighbors. Within the walls of
privacy we may experiment with new ways of living that may not


be accepted by the majority. Privacy, autonomy, and sovereignty, it
would seem come bundled together.
A second but related line of argument rests on the claim that
privacy rights stand as a bulwark against governmental oppression
and totalitarian regimes. If individuals have rights to control
personal information and to limit access to themselves, within
certain constraints, then the kinds of oppression that we have
witnesses in the twentieth century would be near impossible. Put
another way, if oppressive regimes are to consolidate and maintain
power, then privacy rights (broadly defined) must be eliminated or
severely restricted. If correct, privacy rights would be a core value
that limited the forces of oppression.31
Arguably any plausible account of human well being or
flourishing will have as a component a strong right to privacy.
Controlling who has access to ourselves is an essential part of being
a happy and free person. This may be why “peeping Toms” and
rapists are held up as moral monsters—they cross a boundary that
should never be crossed without consent.
Surely each of us has the right to control our own thoughts,
hopes, feelings, and plans, as well as a right to restrict access to
information about our lives, family, and friends. I would argue that
what grounds these sentiments is a right to privacy—a right to
maintain a certain level of control over personal information.32
While complete control of all our personal information is a pipe
dream for many of us, simply because the information is already
out there and most likely cannot or will not be destroyed, this does
not detract from the view of personal information ownership.
Through our daily activities we each create and leave digital
footprints that others may follow and exploit—and that we do these
things does not obviously sanction the gathering and subsequent
disclosure of such information by others.
Whatever kind of information we are considering there is a
gathering point that individuals have control over. For example, in
purchasing a new car and filling out the car loan application, no one
would deny we each have the right to demand that such
information not be sold to other companies. I would argue that this
is true for any disclosed personal information whether it be patient
questionnaire information, video rental records, voting information,
or credit applications. In agreeing with this view, one first has to
agree that individuals have the right to control their own personal
information—i.e., binding agreements about controlling


information presuppose that one of the parties has the right to
control this information.
Having said all of this, I would like to test the Lockean model of
intangible property with a very tricky case dealing with personal
information control.

A woman is kidnapped, taken to an apartment, stripped,
and terrorized. The police—and the media—surround the
apartment. The police eventually overcome the kidnapper
and rush the woman, who clutches a dish towel in a futile
attempt to conceal her nudity, to safety. A photograph of
her escape is published in the next day’s newspaper. She
sued for invasion of privacy and eventually lost the case.
(Cape Publications, Inc. v. Bridges, Florida 1982).33

According to the theory that I have sketched, the photographer may
indeed have a property right to the photograph he took—if his mere
acquisition does not worsen—but this does not mean that he can do
anything with the photograph. His rights to control the picture are
limited by the harm and privacy restrictions. So even if publishing
the photograph did not harm the woman involved, it would still be
an illicit violation of privacy.
Now, it is clear that my view runs counter to prevailing
attitudes about the First Amendment. I would place more
restrictions on speech or expression than is currently found in the
law. Not only can we not yell “fire” in a crowded theater—this
would violate the harm restriction—we cannot publish sensitive
personal information without permission. This is not to say that the
harm restriction and the privacy restriction are exceptionless—those
who live their lives in the public realm may have to endure a more
limited sphere of privacy. Moreover, certain harms may be
permitted in order to protect a community from criminals and the
like—for example, consider laws that require public notification
when a child predator is relocated to a new community. Politicians
and entertainers, in a sense, sanction a more limited sphere of
privacy by choosing a certain career path and a similar point can be
made with respect to criminals. While the sphere of privacy
protection may be more limited in these cases there are still
boundaries that cannot be crossed. Becoming a “public figure” does
not sanction continual harassment for autographs, pictures, and


interviews. Access, in many ways, is still left to the individual—and
this is how it should be.
In my view, an important part of a right to privacy is the right
to control personal information; “control” in the sense of deciding
who has access and to what uses the information can be put;
“personal” in the sense of being about some individual as opposed
to being about inanimate objects, corporations, institutions, and the
like. These are not intended to be precise definitions—rather I am
trying to capture the common everyday notion of a privacy interest.
The appropriateness of who knows particular facts about an
individual is, in an important sense, dependent on certain
relationships. The kind of information access between doctor and
patient, husband and wife, mother and child, and total strangers,
are all appropriately different.34
Against this backdrop what sense can be made of the public’s
“right to know?” A newspaper may publish information about a
kidnapping and rescue, but this does not sanction publishing
sensitive personal information about the victim. Right‐to‐know
arguments may carry some weight in cases where public funds are
being spent or when a politician reverses his stand on a particular
issue, but they seem to be suspect when used to justify intrusions.
Sissela Bok echoes these concerns when she writes,

Taken by itself, the notion that the public has a “right to
know” is as quixotic from an epistemological as from a
moral point of view, and the idea of the public’s “right to
know the truth” even more so. It would be hard to find a
more fitting analogue to Jeremy Bentham’s characterization
of talk about natural and imprescriptible rights as
“rhetorical nonsense—nonsense upon stilts.” How can one
lay claim to a right to know the truth when even partial
knowledge is out of reach concerning most human affairs,
and when bias and rationalization and denial skew and
limit knowledge still further?
So patently inadequate is the rationale of the public’s
right to know as a justification for reporters to probe and
expose, that although some still intone it ritualistically at
the slightest provocation, most now refer to it with a tired
irony.35


The social and cultural benefits of free speech and free information
is generally cited as justification for a free press and the public’s
right to know. This is why news‐services can publish photographs
and stories that contain sensitive personal information about almost
anyone. But computer technology has changed the playing field and
such arguments seem to lose force when compared to the
overwhelming loss of privacy that we now face. The kinds of
continual and systematic invasions by news‐services, corporations,
data mining companies, and other individuals that will be possible
in a few short years is quite alarming.

Conclusion
While there is still much to be worked out, I think that important
steps have been taken toward a Lockean theory of intangible
property. If no one is worsened by an acquisition, then there seems
to be little room for rational complaint. The individual who takes a
good long drink from a river does as much as to take nothing at all
and the same may be said of those who acquire intangible property.
Given allowances for independent creation and that the frontier of
intangible property is practically infinite, the case for Locke’s water‐
drinker and the author or inventor are quite alike.
Even so, such rights are not without limitations. I cannot
justifiably slash your tires with my knife nor may I publish your
medical records on my web site. The proliferation of the Internet
and the World Wide Web into everyday life is forcing us to rethink
our views about information access and control. The claim is not
that controlling information used to be unimportant and now it is
important—alas, censorship in various forms has always been with
us. What I think true, however, is that computer networks coupled
with digitally stored information is significantly changing the way
we interact and communicate. We will have to be much more
careful about what we do and say in the future both publicly and
privately. Any information or ideas that we disclose, including
inventions, recipes, or sensitive personal information, might soon be
bouncing around cyberspace for anyone to access. Many net
anarchists claim that “information wants to be free” and advocate a
model of unrestricted access to all kinds of information. In this
article I have argued otherwise—information, especially sensitive
personal information, can be owned and restricted on grounds of
property or privacy. And if we are to err on the side of too much
access or too much privacy, better—far better—the latter.


*Copyright American Philosophical Quarterly, Vol. 35 (October, 1998): 365‐375. Portions of this
paper were presented at the 1997 Central Division Meeting of the APA and at the 1998 Ohio
Philosophical Association conference. I would like to thank David Wasserman, Jim Swindler, Earl
Spurgin, Don Hubin, and Ken Itzkowitz for their suggestions and comments.
1. This phrase comes from John Perry Barlow, “The Economy of Ideas: Everything You Know
About Intellectual Property is Wrong” in Intellectual Property: Moral, Legal, and International Dilemmas,
edited by A. Moore (Lanham, MD.: Rowman & Littlefield, 1997), Chapter 15.
2. Kevin Kelly and Gary Wolf, “Push,” Wired Magazine (March 1997), 14.
3. Deborah Johnson, Computer Ethics (Upper Saddle River, N.J.: Prentice Hall, 1994), 84.
4. For a lengthy defense of the following Lockean model see Intellectual Property and Information
Control (New Brunswick: Transaction Pub., 2001, 2004). See also, “A Lockean Theory of Intellectual
Property,” Hamline Law Review 21 (1997): 65‐108 and “Toward a Lockean Theory of Intellectual
Property,” in Intellectual Property: Moral, Legal, and International Dilemmas, edited by A. Moore.
5. American copyright law prohibits the ownership of abstract ideas—copyright protects new
and original expressions, not the ideas that stand behind the expressions. Nevertheless there is still a
type/token model here because copyrights protect expressions of a certain type.
6. It may be objected that some intangible works are rivalrous, for example the Mona Lisa or
Michelangelo’s David. What is rivalrous about these works is not the ideas that are embodied in the
canvas or stone, it is the physical works themselves. We can all hang a copy of the Mona Lisa in our
living rooms—we just can’t have the original embodiment.
7. Unlike copyrights and trade secrets, patents exclude other independent inventors from
obtaining rights to a work already patented. The Lockean model of intangible property that I will
sketch does not include such a rule.
8. John Locke, The Second Treatise of Government,§ 27 (italics mine).
9. Locke, Second Treatise, § 33.
10. Both Jeremy Waldron, “Enough and as Good Left for Others,” Philosophical Quarterly (1979):
319‐328, and Clark Wolf, “Contemporary Property Rights, Lockean Provisos, and the Interests of
Future Generation,” Ethics (July, 1995): 791‐818, maintain that Locke thought of the proviso as a
sufficient condition and not a necessary condition for legitimate acquisition.
11. This view is summed up nicely by Wolf, “Contemporary Property Rights,” 791‐818.
12. Even Marx never explicitly denies that laborers are entitled to the fruits of their labor—
“Indeed, it is natural to think that his condemnation of capitalist exploitation depends on a
conviction that laborers are entitled to the whole fruits of their labor.” Lawrence Becker, Property
Rights: Philosophic Foundations, (London: Routledge & Kegan Paul, 1977), n2, p. 121. See also, Karl
Marx, Capital (New York: International Publishers, 1967), vol. 1, part VIII, chapter xxvi.
13. For a defense of this view of rights see G. Rainbolt, “Rights as Normative Constraints,”
Philosophy and Phenomenological Research (1993): 93‐111, and Joel Feinberg, Freedom and Fulfillment:
Philosophical Essays (Princeton University Press, 1986).
14. One state of the world, S1, is Pareto‐superior to another, S2, if and only if no one is worse‐off
in S1 than in S2, and at least one person is better‐off in S1 than in S2. S1 is strongly Pareto‐superior to
S2 if everyone is better‐off in S1 than in S2, and weakly Pareto‐superior if at least one person is better‐
off and no one is worse‐off. State S1 is Pareto optimal if no state is Pareto superior to S1: it is strongly
Pareto‐optimal if no state is weakly Pareto‐superior to it, and weakly Pareto‐optimal if no state is
strongly Pareto‐superior to it. Throughout this essay I will use Pareto‐superiority to stand for weak
Pareto‐superiority. Adapted from G. A. Cohen’s “The Pareto Argument For Inequality” in Social
Philosophy & Policy 12 (Winter 1995): 160.
15. It is important to note that compensation is typically built into the proviso and the overall
account of bettering and worsening. David Gauthier echoes this point in the following case. “In
acquiring a plot of land, even the best land on the island, Eve may initiate the possibility of more
diversified activities in the community as a whole, and more specialized activities for particular
individuals with ever‐increasing benefits to all.” Gauthier, Morals By Agreement (Oxford: Clarendon
Press, 1986), 204. Eve’s appropriation may actually benefit her fellows and the benefit may serve to
cancel the worsening that occurs from restricted use. Moreover, compensation can occur at both the
level of the act and at the level of the institution. This is to say that Eve herself may compensate or
that the system in which specific property relations are determined may compensate.
16. I have in mind Nozick’s Robinson Crusoe case in Anarchy, State, And Utopia (New York:
Basic Books, 1974), 185.
17. The distinction between worsening someone’s position and failing to better it is a hotly
contested moral issue. See Gauthier, Morals By Agreement, 204; Shelly Kagan, The Limits of Morality
(Oxford University Press, 1989), chap. 3; John Harris, “The Marxist Conception of Violence,”
Philosophy & Public Affairs 3 (1973‐74): 192‐220; John Kleinig, “Good Samaritanism,” Philosophy &
Public Affairs 5 (1975‐76): 382‐407; and Eric Mack’s two articles, “Bad Samaritanism and the
Causation of Harm,” Philosophy & Public Affairs 9 (1979‐80): 230‐259, and “Causing and Failing To


Prevent Harm,” Southwestern Journal of Philosophy 7 (1976): 83‐90. This distinction is even further
blurred by my account of opportunities. See Moore “Toward A Lockean Theory” 88‐89.
18. This view is summed up nicely by A. Fressola. “Yet, what is distinctive about persons is not
merely that they are agents, but more that they are rational planners—that they are capable of
engaging in complex projects of long duration, acting in the present to secure consequences in the
future, or ordering their diverse actions into programs of activity, and ultimately, into plans of life.”
Anthony Fressola, “Liberty and Property,” American Philosophical Quarterly (Oct. 1981): 320.
19. One problem with a Pareto condition is that it says nothing about the initial position from
which deviations may occur. If the initial position is unfair then our Pareto condition allows that
those who are unjustly better off to remain better off. This is why the problem of original acquisition
is traditionally set in the state of nature or the commons. The state of nature supposedly captures a
fair initial starting point for Pareto improvements.
20. It has been argued that subjective preference satisfaction theories fail to give an adequate
account of bettering and worsening. See D. Hubin and M. Lambeth’s “Providing For Rights”
Dialogue 27 (1989).
21. For similar views see: Rawls, A Theory of Justice (Cambridge: Harvard University Press,
1971), cha. VII.; Aristotle, Nicomachean Ethics, bks. I and X; Kant, The Fundamental Principles of The
Metaphysics of Morals, Academy Edition; Sidgwick, Methods of Ethics, 7th ed. (London: Macmillian,
1907); R. B. Perry, General Theory of Value (New York: Longmans, Green, 1926); and Loren Lomasky,
Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987).
22. One plausible exception is body rights which are similar to, if not the same as, many of the
rights that surround property.
23. There may be many others such as, consent theories, consequentialist theories, social
contract theories, theories of convention, and so on.
24. The proviso permits the use, exclusion, and augmentation of an object. Although this does
not give us a complete theory of property relations it begins the process. I would argue that the
proviso, whatever other forms of property relations it might allow, permits private property
relations.
25. Suppose that one way to achieve Pareto‐superior results is by adopting an institution that
promotes and maintains restricted access, or fencing, of intellectual works. This is to say that, given
our best estimates, everyone is better‐off living within an institution where fencing is permitted and
protected as opposed to alternative institutions where fencing is prohibited. If such a case can be
made, then the Paretian may have a way to justify specific acts of appropriation by appealing to the
level of institutions.
26. The “harm” that I have in mind here is in terms of an individual’s level of well‐being.
Obviously alternative accounts of bettering and worsening will defend a different standard of harm.
27. Alan Westin, “Privacy in the Modern Democratic State” in D. Johnson and J. Snapper,
Ethical Issues in the Use of Computers (Belmont, CA: Wadsworth Pub.: 1985): 187.
28. W. A. Parent, “Privacy, Morality, and the Law” Philosophy & Public Affairs 12 (Fall 1983): 269‐
288, reprinted in D. Johnson and J. Snapper, Ethical Issues in the Use of Computers, 203 (all page
citations refer to the reprint).
29. Dean William Prosser, “Privacy,” California Law Review 48 (1960): 383, 389, quoted in E.
Alderman and C. Kennedy, The Right to Privacy (New York: Alfred A. Knopf, 1995), 155‐56.
30. C. Rossiter, Aspects of Liberty (Ithaca, NY: Cornell University Press, 1958) quoted in Westin,
“Privacy in the Modern Democratic State” 188.
31. For more about privacy rights see, Charles Fried, “Privacy,” Yale Law Journal 77 (1968): 477;
A. Westin and M. Baker, Databanks in a Free Society (New York: Quadrangle Press, 1972); and J.
Rachels, “Why Privacy is Important,” Philosophy and Public Affairs 4 (Summer 1975): 323‐33.
32. Would I be doing something morally illicit if I put on my new anti‐monitoring suit that
afforded me complete protection from every surveillance devise except the human eye?
33. This case is cited in E. Alderman and C. Kennedy’s The Right to Privacy, 171.
34. Rachels in “Why Privacy is Important” argues that privacy is valuable because it is
necessary for creating and maintaining different kinds of relationships with people.
35. Sissela Bok, Secrets (New York: Pantheon, 1982), 254.

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