I haven’t been posting recently because I’ve been pretty busy lately. [1] Among other things, I’ve begun studying for the bar, and that has led me to this post about bailments and information.

We were discussing bailments yesterday, which are situations where you hand over possession of personal property to someone else but retain an ownership interest.  For example, if I give the coat check girl my coat, she gets possession of the coat, but I still own it.  What I was interested to learn was that when you “rent” a safe deposit box, you are actually merely creating a bailment with the bank.  Moreover, unlike other bailments, the bank is responsible for anything you put in your safe deposit box, even if it is unexpected.

Why did I find this interesting?  In Fourth Amendment jurisprudence if you give an object or information to a third party, you lose privacy protections in that object or information vis-à-vis the government.  Interestingly, this rule does not apply to safe deposit boxes.  Moreover, it doesn’t apply to safe deposit boxes, despite the fact that if your bank is keeping records of your financial transactions that information is not protected.

This leaves me with two questions.  First, why do we protect the information in safe deposit boxes differently than all other information disclosed or held by third parties?  Second, is there a way to set up a situation where information can be given to a third party as a bailment?

I’ll try to do some research over the next couple weeks to answer the first question, but I suspect it’s just an old rule whose dust has turned to patina.

As for the second question, my intuition is that the difficulty will be that we generally don’t think of information as something that in and of itself you can have an ownership interest in.  You can have an ownership interest in a recognized intellectual property type, but those require additional characteristics.  However, if we could fabricate a situation where I could have an ownership interest in my information, and then give merely possession to another, we could try to draw analogies.  I’d be curious if anyone has ideas of how one might make that argument, or if anyone’s read anything making this kind of an argument.

[1] Finals, parents visiting, graduation, moving, and then a big nap.

Fourth Amendment, Privacy, Torts