If heath policy makers' wishes come true, by the end of the current decade the paper charts in which most of our medical information is currently recorded will be replaced by networked electronic health records ("EHRs").[...] Like all computerized records, networked EHRs are difficult to secure, and the information in EHRs is both particularly sensitive and particularly valuable for commercial purposes. Sadly, the existing federal statute meant to address this problem, the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), is probably inadequate to the task.[...] Health law, privacy, and intellectual property scholars have all suggested that the river of information created by integrated, networked EHRs and other data systems must somehow be controlled, and many of these scholars have considered whether "property" might provide such control.[...] The Article's principal thesis is that arguments over the control of rights in personal information test contemporary understandings of what property is and reveal fault lines in modern property theory. If property rights exist at all in "dephysicalized," digitized information, those rights are unlikely to be consolidated in a single person, to operate in rem, to grant owners significant powers to exclude, or to be standardized--qualities that, in the eyes of some, are required of true "property" interests. Claims of ownership to personal information also raise questions about whether property is the right rhetorical frame in which to consider the problem of information that is deeply connected to people's selves. Finally, propertization claims assume a closer connection between property and control than is either realistic or desirable in an interconnected world. It is likely that, at the end of the day, individuals will as a matter of policy be granted some rights to control some of their personal information, but those rights will not follow from anything in property's "nature." Part I introduces the control issues raised by EHRs specifically and by the collection of personal information more generally, and then examines the arguments for using property as a device to control information.[...] Part II explores the connection between the loss of control over information and concerns about the "self." It questions whether property is the best frame in which to talk about medical and other personal information, i.e., whether, rhetorically, we should treat information about the self as a commodity. It questions also whether we can avoid a property frame.[...] Part III returns to the specific policy problems presented by EHRs and by personal information. A workable EHR policy will take account of a wide variety of values, issues, and interests. Incentives must be created to facilitate EHR adoption, standards must be set to insure interoperability, malpractice rules must be adjusted to accommodate new practices (not to mention new mistakes), and procedures must be developed to enable use of EHR data for public health purposes.[...] A workable policy for EHRs and for personal information will no doubt provide individuals some control rights. These rights might look, in the eyes of some, like property rights. But if control rights are granted, it will not be because "property" demands them, but because other considerations of health and public policy do. All this raises the question of when and whether property might ever provide the control that advocates of information-as-property desire. In a world of de-physicalization and digitization, ownership may not provide the kind of power that old-fashioned property rhetoric invokes. This state of affairs is not necessarily one to be lamented. The question of how power and control over information will be apportioned involves hard choices. But because property theory is itself deeply divided over the extent to which property provides control, "property" itself cannot determine how these choices should be made. "Property" may never have actually given owners as much control as the new adherents of property in information envision. Even if it did, in a world of increasing interconnection, it may be good to be reminded that power and control are themselves always shared.
Jane B. Baron,
Property as Control: The Case of Information,
Mich. Telecomm. & Tech. L. Rev.
Available at: http://repository.law.umich.edu/mttlr/vol18/iss2/1