A Lockean Theory of Digital Property

Alex Jones and his show have been banned from Apple, Facebook, YouTube, Spotify, YouPorn, and Pinterest, and people have Opinions.

CENSORSHIP, his defenders cry.

Private companies enforcing private rules on private property, detractors reply.

Maybe they’re both right.

Cullen Roche likens Alex Jones to a guest pissing on the carpet. If someone pisses on your carpet, you kick them out of the house, no problem.

BUT! Suppose Cullen lived in San Francisco, where pissing on the ground is the norm. Suppose Alex Jones showed up at Cullen’s house and pissed on the carpet, and Cullen did not object. Suppose Alex showed up the next day and pissed, and Cullen still did not protest. Suppose Alex shows up day after day, and Cullen allows the behavior to pass.

And suppose this continues for many years, until one day Cullen decides that piss puddles are no longer welcome in his house.

You’ll need to find somewhere else to piss, Cullen might say to Alex.

No, Alex might reply. I’ve become accustomed to using your carpet as a chamber pot and quite like it here. I think I’ll stay.

TOO BAD, Cullen would say. THIS IS MY HOUSE. GO BUILD YOUR OWN HOUSE TO PISS IN.

Not so fast, Alex could reply. I’ve been marking my territory for many years. As a result, I now have a prescriptive easement. This spot of carpet is mine to piss on.

Right, that’s a thing. According to state law, an entity can earn an interest in the property of another through regular use*. In California, if you use someone’s carpet as a toilet for at least five years, you establish the right to continue doing so. This is also known as squatter’s rights.

Squatter’s rights don’t often come up in disputes because people are generally quick to remove strangers who urinate in their homes. THEY DON’T WAIT FIVE YEARS TO FORCE PAST BEHAVIOR TO CONFORM TO THE SHIFTING STANDARDS OF SOCIAL JUSTICE.

Use-rights appropriation isn’t just Marxist bullshit; John Locke’s labor theory of property also applies: An individual owns their own labor, and has a right to any mixing of their labor with property. I don’t know about Alex Jones, but I put a lot of work into my Twitter account! Nine years of careful supervision, to be exact. Witticisms needed my re-broadcasting, funny memes my endorsement. I tilled the soil, sowed the seeds, trimmed the flowers, watered the weeds. Today I have 20,000 followers. They may not matter to Twitter, but they matter to ME. If Alex Jones worked as hard on his accounts as I have on mine, I daresay he’s earned the right to continue using his plot of virtual real estate.

* Remember when people got all worked up after Vinod Khosla bought some beachfront property and blocked off access to Martins Beach? The California Coastal Commission claimed that families had been accessing the shoreline via that land since the 1920s. Thanks to a compulsory easement, Khosla was forced to open his Private Property to all manner of derelicts, many of whom probably pissed on it (this is San Francisco, after all).

3 thoughts on “A Lockean Theory of Digital Property

  1. Are there any historical examples of an easement winning over an owners reasonable request to not piss on their carpet? In regard to the Jones “case” there are also terms and conditions previously posted and allegedly breached I think-do you feel governments should hand be able wave these?

    1. Well, as I mentioned, homeowners usually kick out carpet-pissers long before the statute of limitations has run up. So I don’t think it’s ever been an issue. But plenty of non-piss examples, like the Khosla link in the footnote — surfers won the right to walk over his property to get to the beach, because the previous owner allowed them to do that for many years.

      I’m sure all the tech platforms have their asses covered with ToS; I’m not a lawyer and I don’t expect something like this to hold up in court. It was really just a thought experiment in response to all the ppl claiming private property owners can do whatever they want.

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