Rozeff: Contents of Private E-Mails Are Private Property

Michael Rozeff has a provocative post on LRC about property rights in the content of email. Here’s the post:

Contents of Private E-Mails Are Private Property

Suppose that I own a safe and it is empty. Someone breaks into it and finds nothing. They have trespassed at a minimum. Maybe more, maybe breaking and entering, maybe attempted burglary.

Suppose now that I invent a new soft drink and I keep the formula in this safe. No one can chemically analyze the soft drink and replicate the formula. Someone breaks into the safe and steals the formula. Is the crime worse? I say it is. The harm to me is greater. One cannot assume that the formula, as an idea, is not a scarce good or a free good. It is my private property. It can be copied without disturbing the original, but that is not relevant in this case because I’ve placed a boundary around it. We shouldn’t go off on a confusing tangent about it using a concept of intellectual property because of the copying factor.

A private e-mail, like a letter, could physically be intercepted, accessed and copied without taking anything physical away from the sender or owner. Are the contents then not property, and is copying them therefore not a theft? I say it is theft. The “good” that is an e-mail and a letter is not purely physical. The subjective utility of it depends on its personal, private and psychological content as a communication. The thief who accesses it has, in general, undermined this utility. He has harmed the sender.

I see this case as being the same as the thief who steals the soft drink formula. There is a trespass followed by a theft.

NOTE: A comment by Nick Badalamenti with a second from Robert Wenzel has induced me to alter this post although not in the direction they suggested. All remaining errors are solely mine.

This post provides a good opportunity to explore some issues related to libertarian property theory. I repeat the post and provide some comments inline:

Suppose that I own a safe and it is empty. Someone breaks into it and finds nothing. They have trespassed at a minimum. Maybe more, maybe breaking and entering, maybe attempted burglary.

Suppose now that I invent a new soft drink and I keep the formula in this safe. No one can chemically analyze the soft drink and replicate the formula.

It’s odd to simply assert that it’s impossible to analyze the soft drink and replicate the formula. It’s just a soft drink, after all. But let this pass.

Someone breaks into the safe and steals the formula. Is the crime worse? I say it is. The harm to me is greater. One cannot assume that the formula, as an idea, is not a scarce good or a free good. It is my private property. It can be copied without disturbing the original, but that is not relevant in this case because I’ve placed a boundary around it. We shouldn’t go off on a confusing tangent about it using a concept of intellectual property because of the copying factor.

Rozeff is correct that the harm is worse. But this issue goes to the damages (restitution) appropriate in response to an act of trespass. If I steal from you a hunk of marble worth $100 then I owe you something on the order of $100; if I steal from you a hunk of marble you bought from some sculptor for $100,000, then I owe you more money. The things stolen were different. But objects x and y being different does not mean that the “difference” is an ownable thing.

Likewise, if I steal from you a blank notebook the damages might be $100; if I steal from you a notebook containing the only copy of your novel (and it is unrecoverable), the damages will be greater (even if it might be difficult to determine the exact amount of restitution owed—that is a different issue). This does not imply that the information in the stolen object is property, or scarce, as Rozeff’s reasoning implies. Rozeff simply asserts that formulas and ideas cannot be assumed not to be scarce goods (i.e., in his double negative formulation he is saying that ideas and formulas can be property). But he is just asserting this. He just asserts that it is private property.  He gives no argument for this. He is assuming that just because an owner of property values the thing more because of its particular configuration—meaning that restitution owed by a thief might be greater—this means that the arrangement itself is private Property. Not true.

If you own a scarce resource, and you transform it into a different arrangement, it might be more valuable to you, or to others; thus you have increased wealth. But you have not created new resources or property rights; and you do not have a property right in the value of resources, as Austrian-libertarian-anarchist philosopher Hans-Hermann Hoppe has explained. (See Hoppe on Property Rights in Physical Integrity vs Value; also Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’.)

Note that Rozeff gives no definition of scarcity or rivalrousness. Economists widely recognize that information, formulas, ideas, are not scarce—including Austrians. As Hayek wrote in The Constitution of Liberty:

The rapid economic advance that we have come to expect seems in large measure to be the result of this inequality and to be impossible without it. Progress at such a fast rate cannot proceed on a uniform front but must take place in echelon fashion, with some far ahead of the rest. The reason for this is concealed by our habit of regarding economic progress chiefly as an accumulation of ever greater quantities of goods and equipment. But the rise of our standard of life is due at least as much to an increase in knowledge which enables us not merely to consume more of the same things but to use different things, and often things we did not even know before. And though the growth of income depends in part on the accumulation of capital, more probably depends on our learning to use our resources more effectively and for new purposes.

The growth of knowledge is of such special importance because, while the material resources will always remain scarce and will have to be reserved for limited purposes, the users of new knowledge (where we do not make them artificially scarce by patents of monopoly) are unrestricted. Knowledge, once achieved, becomes gratuitously available for the benefit of all. It is through this free gift of the knowledge acquired by the experiments of some members of society that general progress is made possible, that the achievements of those who have gone before facilitate the advance of those who follow.

And of course, other Austrians, such as Mises, Fetter, Rothbard, also recognized that knowledge and recipes are not scarce goods (see my and Jeff Tucker’s article Goods, Scarce and Nonscarce, the section “Austrians on “Free Goods”).

So Rozeff is wrong here. You do not need to maintain that ideas are scarce goods or private property just because an act of trespass might have greater damages in some cases where secret information is accessed, exposed, or destroyed—the primary property violation is the act of trespass by which the thief acquired the object that contained the private information. The trespasser owes restitution, which is determined by the extent of damage done to the victim, which can vary based on the nature of the damage done. (For more on this, see my 1996 JLS article Punishment and Proportionality: The Estoppel Approach, at Section IV.B, “The Victim’s Options,” and Why Spam is Trespass. In the JLS piece I explain that perfect restitution is impossible for a number of reasons—the subjective nature of value, the impossibility of literally undoing a crime, etc.—but that because the aggressor is the one who has placed the victim in the position of being faced with imperfect remedies, the victim ought to have wide latitude in the remedy he or she seeks, in terms of types of retaliation or restitution. See note 39 in particular.)

Another way to look at this: note that there is no need to call the formula “private property” or “scarce” in order to punish the trespasser and/or seek restitution from him for accessing/copying/publicizing/using/destroying it. He cannot do any of these things unless he commits physical trespass—an act of invasion of the physical borders of, an uninvited, unconsented to use of or change in the physical integrity of—another’s body or other owned resource. (See What Libertarianism Is, text at n.9.) And if he does one of those things, he owes restitution for the damage he has caused. The damage is greater in the case of access to private information, but this does not mean the information is ownable, scarce, or subject to private property rights. In fact the only purpose of characterizing information as scarce and private property is to create in it an in rem property right  good agains the world—this is commonly known as intellectual property. Rozeff appears not to want to call the (private) information in emails or safes “intellectual property” so he calls them “private property” instead.

Interestingly, his post was originally entitled “Contents of Private E-Mails Are Not Intellectual Property,” as can be seen in the URL of the post and as noted in Robert Wenzel’s post Michael Rozeff: Right, Right and Wrong (Wenzel is the pro-IP blogger who had a discussion with me a few months back about this matter). Wenzel and his correspondent Nick Badalamenti are right that the thrust  of Rozeff’s post would imply that intellectual property is legitimate, but instead of changing his post title to accurately assert that contents of emails are IP, Rozeff simply changed the post title to say that email content is private property. But this is not incompatible with what IP advocates say at all: they readily admit that they believe knowledge, information, recipes, ideas are and should be treated as private property. However, most of them, unlike Rozeff, at least recognize that information and knowledge is not scarce, but that it should be property anyway; Rozeff seems to believe only scarce things can be private property, so to argue that email contents—information—is private property, it must be a scarce resource. The standard IP advocates are correct in recognizing that information is not scarce but wrong in thinking that it can be property anyway; Rozeff is correct in thinking that only scarce resources can legitimately be subject to property rights, but incorrect in arguing that information is a scarce resource. If Rozeff had tried to offer a coherent definition of scarcity or rivalrousness, it would have become more apparent that his analysis is flawed. This highlights the importance of using clear and well-defined terms, employing rigorous arguments, and being careful of the perils of overly metaphorical, ambiguous terms and reasoning. (See my post On the Danger of Metaphors in Scientific Discourse.)

Continuing with Rozeff’s post:

A private e-mail, like a letter, could physically be intercepted, accessed and copied without taking anything physical away from the sender or owner. Are the contents then not property, and is copying them therefore not a theft? I say it is theft.

Accessing someone’s “private e-mail” is typically done by some kind of physical trespass, including hacking (see Why Spam is Trespass). The “theft” is the use of someone’s scarce resource without their permission—breaking into their home, accessing a computer system without permission, and so on. The fact that the thief might acquire private/secret information by means of this act of theft goes to the extent of damages flowing from the trespass. It does not imply “copying” of information in general is theft. Rozeff is right to sense that a trespasser‘s “copying an email” is illegitimate; but that is because of the means implied. All that recognizing this implies is that “accessing private information by means of trespass against owned scarce resources” is a type of trespass or rights violation. It does not  justify the blanket statement that “copying information” is theft, or that any kind of information is property, even private information. Information is not and can never be property. Just because you are the sole possessor of private information in your own brain does not mean it is private property, just as the fact that you can decide which actions or labor to engage in, with your owned body, means that you own your actions or your labor. You own your body, and this gives you the ability to choose what actions and labor to engage (or not engage) in. You own external, previously unowned scarce resources that you acquired either by original appropriation (Lockean homesteading) or by contract from a previous owner. Owning these things gives you the ability to use them in various ways, as means, including rearranging them into more valuable configuration, and, say, storing information and patterns in these physical media. This does not imply the rearrangement patterns are owned. (Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”.)

I think a big confusion arises in libertarian reasoning, especially in issues having to do with IP and information, by using the word “property” sloppily and indiscriminately, to refer to the thing owned. By doing this, we lose sight of the essential nature of property rights being to assign owners (human actors) who have the legal right to control or use particular scarce resources. An actor-owner has a property right in a given scarce resource; the question is always: who is the owner of a given contested scarce, material thing? The libertarian answer is: the person who originally appropriated it or someone who acquired it by contract (or restitution remedy) from a previous owner. But using “property” to refer to the owned thing itself, instead of to the relational property right in the scarce resource, obscures all this, in particular it obscures the fact that it is always a scarce resource whose ownership we are trying to determine. If this had been kept in mind, Rozeff’s question would instead look something like this: “Are the contents of an email then not a previously unowned scarce resource at some point homesteaded by the author, and is copying these scarce resources therefore not a theft?” Well, authors do not exactly homestead patterns of information, do they? Patterns of information are not just sitting out there, unowned, waiting for someone to come along and be the first to grab them. And how in the world do you “copy” a scarce resource? Not by committing any form of “theft” or trespass, that’s for sure. If I see you build a bicycle and think that’s a good idea, and make my own bicycle, I have “copied” yours, but so what? That’s not theft. (See Nina Paley’s Copying Is Not Theft.)

Back to Rozeff’s post:

The “good” that is an e-mail and a letter is not purely physical. The subjective utility of it depends on its personal, private and psychological content as a communication. The thief who accesses it has, in general, undermined this utility. He has harmed the sender.

He harmed the sender by committing an act of trespass against some owned, physical property. That is where the property rights lie: in the physical things that the trespasser accessed without permission.