I’ve returned again and again (and again ) to the subject of property rights in information. As regular readers know, a 2018 Supreme Court case called Carpenter v. United States posed the question of property rights in information rather directly. Government agents had accessed cell-phone-generated location data to pinpoint the whereabouts of a robbery suspect. They did so without a warrant.

If that were a common practice, it would expose a lot of important information about a lot of us to a lot of people who probably shouldn’t have it. The court found, over several dissents, that it violated the Fourth Amendment to access this data without a warrant.

The most interesting dissent was that of Justice Neil Gorsuch, who harshly criticized the choice of Timothy Carpenter’s counsel not to press his property rights in the data. Gorsuch described how property law allows a person to place their things in the custody of others and still maintain ownership, along with—importantly—their Fourth Amendment rights in those things. If cell-phone data were a bailment to the phone companies, it would remain the property—and thus constitutional papers or effects—of people such as Carpenter (and us non-robbers too).

So, I’ve been doing some research. What is the status of information as property?

Property being a common-law concept, it is harder to see it developing in this “ age of statutes .” Legislatures are addressing problems more quickly than common law would (perhaps at a cost to comprehensiveness or recognition of trade-offs). The Uniform Trade Secrets Act, for example, is a widely adopted state statute that protects holders of trade secret information in which property rights probably would have done so.

When statutes create property-like rights that align with what common-law development would have found, courts are never pressed to articulately decide whether a certain novel item such as information is property. The questions for courts involve statutory interpretation, not whether a problem is solved by applying or extending time-honored legal principles.

To see treatment of information as property, one has to do a different kind of legal research than searching for the case holding that information is property. It might be analogized to prospecting or geology. Think of the phrase “stolen information” as a core sample obtained from the Earth’s crust that reveals subterranean (or sub rosa) treatment of information as property. Theft is a property crime, so when a court refers to “stolen information,” it is treating the information as property.

Searching the decisions of top appellate courts, one finds interesting things. In 99 cases since 1978, the Supreme Court, every federal circuit, and several state supreme courts have used the phrase “stolen information,” many of them multiple times. The usage has grown, from two instances in the 1970s and two in the ’80s to eight in the ’90s, 20 in the 2000s, and 44 in the 2010s. The 23 instances of the phrase “stolen information” so far in the 2020s suggest this decade will easily eclipse the last.

The types of information described as stolen have evolved over time. The earliest instances were trade secrets. Then you begin to see information wrongly acquired for purposes of insider trading. As early as the 1990s, but more commonly in the 2000s and increasingly to the present day, the information stolen is identity and account information useful in financial frauds. In many cases, convicted identity fraudsters are challenging their sentences, prompting courts to characterize the crime and what was done with the stolen information in the course of affirming lower courts’ sentencing decisions.

The statutes themselves and their legislative histories use the phrase and close analogs too. The federal statute barring fraudulent IDs specifies the criminality of using stolen “authentication features,” including codes, images, and sequence of numbers or letters—which is to say, information.

The House Report for the Computer Fraud and Abuse Act of 1986 justified federal computer crime legislation, saying,

A number of authorities think of information as property and treat it as such.

Finding the phrase “stolen information” is, again, a sampling technique. Courts and legislatures may use phrases such as “stolen data,” “theft of information,” “information theft,” and so on. There appears to be widespread treatment of information as property, somewhat buried by statute laws’ mimicry of property, which confounds and obscures direct court findings that information is, in fact, common-law property.

This article originally appeared in the AEIdeas blog and is reprinted with kind permission from the American Enterprise Institute.