Appetite for Destruction: Symbolic and Structural Facets of the Right to Destroy Digital Property

By Fairfield, Joshua A. T. | Washington and Lee Law Review, January 1, 2017 | Go to article overview

Appetite for Destruction: Symbolic and Structural Facets of the Right to Destroy Digital Property


Fairfield, Joshua A. T., Washington and Lee Law Review


Table of Contents

I. Introduction.............539

II.Theorizing Destruction.........540

A. Destruction as Guarantor of Property Rules............540

B. Threading the Needle.............542

C. Privacy, Property, and Origination............546

III.Operationalizing Destruction.............547

A. Encryption...............547

B. Leveraging Rivalrousness.............549

IV.Conclusion..........550

I. Introduction

Daniel Martin has, in his Note Dispersing the Cloud,1 seized on an important and symbolic stick from the traditional property bundle. By showing the vicissitudes the right to destroy has suffered in the transition from Roman to common to modern law,2 Martin offers us a useful roadmap for the slowly shifting powers we take for granted over what is ours and demonstrates a way forward for one of the oldest of them.

Consumers should have a right to digital destruction for a range of reasons. First, it is a good idea because the power to destroy is highly symbolic. We have long given up Blackstone's "sole and despotic dominion,"3 but it is useful to be reminded of the important sense behind that ringing call to battle: that the owner should be permitted to do what she likes with what is hers, insofar as the legal regime can tolerate it. That message is an important one now, when we do not control-and therefore do not own in any recognizable meaning of the term-our smartphones, smart television sets, smart homes, or smart cars.4

Second, there is also a deeply practical element to Martin's theory. His argument that digital intangibles can be destroyed is, alone, important.5 The received wisdom is that destruction of digital intangibles is simply too hard, given the nature of information technology and the characteristics of information itself. I will try to show in this brief comment that the naysayers have been too quick off the mark. There are certainly difficulties in securing destruction of information-based property, largely because the transaction costs of copying are so low that computer systems make large numbers of copies purely to function. But the very same systems that are making rivalrous6 digital property possible make an owner's real power of permanent destruction feasible.

II. Theorizing Destruction

A. Destruction as Guarantor of Property Rules

One core contribution Martin makes to the theory of destruction is to draw attention toward alternative motives for exercising the right to destroy. Courts are skeptical of destruction of scarce resources for spite's sake.7 Perhaps, Martin theorizes, courts might be more open to the destruction of non-scarce (but still rivalrous) resources for the purpose of securing the owner's peace of mind.8 The question is whether there are other motivations for destruction that might resonate with courts that fall closer to Martin's peace of mind theory on the spectrum than to the spiteful destruction of scarce resources.

The game theoretic thrust of destruction is that it disincentivizes attempts to seize the asset against the will of the owner through some form of liability rule9 or outright theft. Consider the archetypal game of chicken: "Two hooligans with something to prove drive at each other on a narrow road. The first to swerve loses faces among his peers. If neither swerves, however, a terminal fate plagues both."10 One of the key moves is to rip out the steering wheel-that is, to ensure that if the other party continues on its path, there will be a crash. Technology can serve as the precommitment strategy-the steering wheel remover. This is the standard arrangement on an iPhone: if a potential intruder continues on their course of action of guessing wrong passwords, the phone will automatically delete the encryption key, rendering the data inaccessible.11 This strongly disincentivizes theft, as the technological encryption key wipes out valuable data, denying the thief a large part of her gains. …

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