THE PRIVACY INTEREST IN PROPERTY.

• Author: Bell, Abraham

INIPRODUCTION 870 I. PROPERTY THEORIES AND PRIVACY 877 A. Extant Property Theories 877 B. The Emergence of Privacy Law from Property 881 II. PRIVACY IN CONSTITUTIONAL SEARCH AND SEIZURE LAW 884 A. Privacy, Property, and the Fourth Amendment 885 B. Criticisms of Current Fourth Amendment Jurisprudence 891 III. PRIVACY INTERESTS IN PROPERTY LAW 893 A. Property Rights, Civil Rights, and Public Accommodations 894 B. Investigative Reporting and Trespass 899 C.--Beach Access, Public Easements, and Privacy Interests 901 D. Land Use Regulation and Private Residential Property 903 IV. INCORPORATING PRIVACY IN PROPERTY LAW 905 A. Toward a New Understanding of Property Law 905 1. Trespass 905 2. Nuisance 908 3. Covenants and Other Servitudes 909 4. Remedies 911 a. Encroachments 911 b. Punitive Damages 912 c. Heads of Damage 913 V. INCORPORATING PRIVACY IN PROPERTY THEORY 914 A. Property as the Right to Exclude 915 B. The Progressive Property Movement 916 C. The Personhood Theory 918 CONCLUSION 920 INTRODUCTION

Few doubt the centrality of property to Western civilization, but few agree on the reason for its centrality. (1)

One prominent theory views property as vital for economic development. Property law allocates exclusive rights to resources, and thereby incentivizes their efficient management. This theory emphasizes property law's grant of rights of exclusion to owners. (2) Another prevalent set of theories portrays property as central to personal development or moral desert. These theories focus on the owner's ability to exclude others from an asset, to set an agenda for it, and to control its transfer and alienation. (3) Yet another influential justification for the centrality of property emphasizes property as the arena of accommodating both complementary and conflicting social impulses. Theories of this kind eschew simple characterizations of property and stress how much property doctrine should depend on changing social needs and the particulars of the case. (4)

Remarkably, despite this plethora of theories justifying property, little attention has been paid to date to the importance of property to the maintenance of privacy. Privacy is highly valued in society and thus by the law. The Supreme Court famously recognized a constitutional right to privacy in the landmark case of Griswold v. Connecticut. (5) and the right to privacy has continued to play an important role in constitutional jurisprudence until today (6) Privacy concerns have been highlighted in other areas of constitutional law, too, such as Fourth Amendment protections against unwarranted searches and seizures. (7) A cluster of torts has also been established to develop privacy interests, (8) and numerous statutes have been enacted to protect privacy interests in many contexts. (9) Particularly in recent years, thanks to the development of improved communications technology, issues related to privacy have come to the fore in new areas of the law, where a heated debate exists on the appropriate relationship between privacy and property in information. (10) Yet the role of property rights in protecting privacy in the physical world has played little role in property theory to date.

This is particularly ironic in light of the history of the development of privacy law. It is generally acknowledged that the roots of modern constitutional privacy law are to be found in concepts of property. Specifically, privacy interests were originally thought to be defined by, and in service of, property rights. (11) It is only with time that privacy law separated from property law and became a distinct legal field. Yet because privacy law has now emerged out of property law, theories of property law no longer seem to reflect the centrality of privacy. This development is regrettable. While there is little doubt that the new field of privacy law protects privacy interests that are outside the realm of property law, there is likewise little doubt that many privacy interests that concern us still do lie within the realm of property.

Since the rise of legal realism (12) and especially the work of Felix Cohen, (13) academic discussions of property have largely focused on the right of property owners to exclude others. (14) Proponents of exclusion rights support their position by reference to the values of autonomy and efficiency. (15) Opponents of the right to exclude, starting with the legal realists and continuing with progressive property scholars, buttress their position by invoking the value of human "flourishing." (16) Privacy appears to have fallen by the wayside, receiving virtually no attention from either camp. This is not only surprising, but also unfortunate, because privacy is paramount both to autonomy and to human flourishing and thus offers a common ground or a bridge between two of the central competing ideologies in modern property theory. More importantly, it offers a unique view of property as an institution and of its defining characteristics that has been overlooked thus far.

In this Article, we argue for giving privacy its deserved prominence among the values protected by property law. We show that property law is in many ways uniquely placed to protect privacy, and that privacy is rightly and naturally protected by property law. Indeed, we show that several extant doctrines in property law are best understood as attempts to defend rightsholders' privacy rights, even if current theorizing has failed to take notice.

The connection between privacy and property is evident in many existing doctrines in property law. (17) Nowhere is this effect more pronounced than in the context of owners' exclusion rights. As we will show, owners' exclusion powers are often implicitly correlated with their expectations of privacy. Owners of commercial properties who invite the public to frequent their establishments virtually relinquish their right to exclude. By contrast, for the home, where owners' privacy interests are paramount, the right to exclude is at its strongest. The varying scope of a property owner's right to exclude can be best explained through a privacy prism. Compare, first, the exclusion powers of owners of commercial properties with those of private dwellings. Commercial properties are often governed by civil rights acts (18) and the modern version of the public accommodations doctrine. (19) Together, these rules ban owners of commercial spaces that are open to the general public, such as hotels, shops, and restaurants, from discriminating against individual patrons based on race, color, religion, or natural origin. (20) Owners of commercial properties to which the rules apply have no expectation of privacy. In fact, they invite the public to visit their premises. And once they have waived their expectation of privacy, the law abrogates their power to bar entry to individual members of the public in an invidiously discriminatory fashion. (21)

Owners of private dwellings, on the other hand, can generally deny private individuals entry to their home for any reason, including invidious discrimination. The only limitation homeowners face here concerns their ability to engage in some kinds of commercial acts, such as leasing their premises, or advertising services related to the premises. (22) The Fair Housing Act, for instance, mandates that ads for the sale or lease of private spaces not express a preference based on race, color, religion, familial status, or national origin. Yet even here, privacy concerns may prevail and allow property rightholders a broad scope of exclusionary rights. Consider the recent invocation of the ban on discriminatory advertising in Fair Housing Council of San Fernando Valley v. Roommate.com. (23) There, plaintiffs claimed, among other things, that defendants violated civil rights rules by asking users to list gender and other preferences that would ordinarily be considered to violate the Fair Housing Act. Rejecting the civil rights claim, the Ninth Circuit Court of Appeals, per Judge Kozinski, cautioned that government regulation of an individual's ability to pick a roommate "intrudes into the home, which 'is entitled to special protection as the center of the private lives of our people.'" (24) The Court therefore ruled that indicating discriminatory preferences for roommates should not be considered within the scope of the civil rights acts, and should, instead, lie within the traditional exclusionary powers of property rightholders. (25)

Taking account of privacy values in property law takes on increased importance and exigency, given contemporary debates related to new technologies. Just as the development of commercial aviation prompted a re-examination of traditional property doctrines such as the rules of trespass and the ad coelum doctrine, (26) the increasing use of drones, the increased exposure of household items to the Internet, and proliferation of home-based information networks will press (and to some degree have already pressed) (27) traditional property law. Privacy concerns must play a key role in developing the law.

In this Article, we aim to make two contributions--one descriptive and one normative. Descriptively, our goal is to advance a privacy-centered understanding of property. We show that notions of privacy have always been embedded in the institution of property, even if privacy has not received the scholarly attention it deserves. We show how privacy concerns continue to animate several vital doctrines in extant law, even if the term privacy is insufficiently highlighted. We show that, traditionally, property rules have been pivotal to protecting privacy, and that privacy concerns have been pivotal to developing property law. (28)

Normatively, we draw on our descriptive discussion to suggest how property doctrine should be modified to offer better protection of privacy interests. Specifically, we argue that the degree of protection offered to property rights can be modified to...