Posted by: Ray Brescia | April 20, 2021

Digital Privacy and “The New Property”

It has been nearly sixty years since Charlie Reich published his landmark work in the Yale Law Journal entitled “The New Property”. In it, Reich posited that a range of interests deserved protection as “property” that could not be taken away by the government without due process of law, including, among other interests, welfare benefits. For Reich, the ability of government authorities to threaten such interests without constitutional protection undermined personal dignity and democracy. Such thinking started a sea change in the law, leading to decisions like Goldberg v. Kelly, in which the Supreme Court essentially adopted Reich’s approach, ruling that public assistance could not be withheld without proper due process protections. In a recent piece for an issue of the Touro Law Review that celebrated Reich’s life work, I revisit The New Property with an eye towards uncovering an often-overlooked aspect of The New Property: Reich’s additional concern for personal privacy. Through this lens, I examine how, today, private actors have a similar amount of unregulated control over our digital privacy, not unlike the government actors who Reich claimed had dominion over property interests. As with Reich’s concerns about a lack of protection for property interests, the lack of privacy protections in the digital sphere also threaten personal well-being and democracy itself. Below is the abstract. Link to the piece here.

This piece examines often-overlooked aspect of Charles Reich’s landmark work The New Property in the Yale Law Journal: his treatment of the notion of privacy and its connection to his theory of property interests. Reich expressed concerns regarding what he would call government largess—that is, the state’s control over interests such as licenses and welfare benefits that threatened to undermine human dignity and autonomy. Today, I will argue, such threats come mostly from the private sector in the form of the absence of digital privacy. Contrary to what one might expect from legal scholarship that was attempting to create a new class of property protections based on the nature of particular interests, Reich did not make an essentialist argument for why certain classes of interests, like welfare benefits and state-issued licenses, should receive greater protections. Indeed, instead of saying there was something inherent in these interests, he made what was a more consequentialist argument. Reich’s normative move was to say that we had to widen the aperture and recognize a broader class of interests as enjoying protection as property, not because of the nature of these interests but because of the critical benefits that would accrue to individuals were such interests to receive recognition through the law. As I explore in this piece, a critical concern of Reich’s regarding government largess was its threat to not just autonomy, but also privacy. As I also explore further here, today, the same sorts of features Reich identified as those of the “public interest state” (one where individuals are subject to government largess) are present in light of digital technologies and the lack of privacy in the use of such technologies. Reich’s theories about the New Property emerged in the late 1960s and early 1970s, a time when he was also examining the “Greening of America,” represented by what he called a new consciousness. These were also first moments of the dawning of the digital age when its networked fingers were just starting to emerge in military and university laboratories. While Reich would live to see this emergence, he had mostly retired from public life by the time digital and mobile technologies would seem to have a grip on the world, and techno-futurists would proclaim the likelihood of a singularity, yet another new consciousness, through which computers and human intellect would merge. This singularity appears to be upon us in some ways with the emergence of the digital world where much of our online life is subject to private largess. Given Reich’s concerns about the deleterious effects of government largess, I do not believe he would have welcomed this new, digital sphere that is subject to private largess.


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