Beyond Privacy, Beyond Rights—Toward a "Systems" Theory of Information Governance

For decades, we have refined concepts of information privacy, as well as intellectual property, that are largely based on individual rights. Such an approach is undeniably appealing. It does not necessitate a large enforcement bureaucracy, ostensibly enhances human freedom and self-determination, and ensures efficient information allocation through robust markets. As this article explains, a rights-based approach may even lead us to a convergent and coherent concept of information governance on either side of the Atlantic. Such a convergent conception would, however, not be able to extend to both the United States and Europe. For that it may behoove us to take a serious look at the bidirectional information rights structures emerging in Europe. The problem with such rights based approaches is that they have largely failed in practice. In contrast, information privacy protection works when it rests on a rich and deep network of information governance intermediaries. This article concludes by suggesting that studying the system of information privacy and copyright in particular, and of information governance in general, and examining what mechanisms of governance are employed by the various intermediaries may yield a richer, more accurate, and more effective strategy for information governance than the current rights-based approach.