Why isn't the phone company a Bailee of my records? July 31, 2013
Who Owns the Data I Generate
I generate a lot of data. I generate substantive data like this blog post. I also generate data when I use my phone, use an Internet connection, move from one phone tower to another, etc.
Up until recently, the cost of retaining that data exceeded the value of the data. That's no longer true, so many organization retain the data.
But legally, who owns this data? Ownership is important for commercial purposes, but it's also important for 4th Amendment purposes.
The Law Deals With This All the Time
Interestingly, the law has dealt with issues like this since there was law.
Who "owns" a rented apartment? A leased car? A leased factory?
Who "owns" my deposits in a bank?
If I'm the executor of an estate, do I own the estate?
If I bring my laundry to the dry cleaner, do I continue to own my laundry while the dry cleaner is cleaning it?
If I park my car in a parking lot, does the parking lot own my car for a period of time?
The answer to the above questions is long settled law and it's pretty much what we expect: others can posses things that I own for periods of time and only have limited rights in my property.
Bailment is an old and very well trodden branch of the law. It deals with putting your personal property in the hands of others for particular purposes: parking your car in a parking lot or taking your laundry to the dry cleaner.
Why shouldn't my phone records, my pictures on Facebook, my GMail simply be treated as my data where I am the bailee and AT&T, Facebook, and Google be the bailor?
This approach addresses a lot of issues. It makes the copyright issue go away because the bailee is only making copies at my direction.
More importantly, it makes the 4th Amendment issues crystal clear. It becomes crystal clear that the government has no more rights in my cell phone metadata than it does to riffle through the pockets of my laundry at the dry cleaner. It's fine with a warrant, but it's not okay for the police to go to my dry cleaner and check out my laundry.
It's a Complex World, but it's pretty simple that I own the data the I create and I create the data via explicit actions (writing this blog post) and implicitly. But it is my data, just like it's my apartment. Just as the government needs a warrant to look at my apartment (even though it's "owned" by my landlord), the government needs a warrant to look at my data and metadata. The online holders of this data have a bailment relationship with me.