Propertization Metaphors for Bargaining Power and Control of the Self in the Information Age

Information-era contracting practices have permitted producers to gather immense quantities of personal information regarding their consumers, digest that material to create an electronic double - or doppelganger - of individuals, and then sell those doppelgangers to others for the purpose of reducing the bargaining power of targeted individuals to resist additional transactions. This Article, part of a symposium on the work of Margaret Jane Radin, argues that the threatening consequences of this commodification and propertization of consumers' electronic selves represent only part of the picture. Information era technological developments provide more tools than ever available before by which consumers can place boundaries around their right to consent and exclude others from that arena. Thus, Internet-based contracting allows consumers to access a broad range of bargaining power inputs to protect their power to withhold consent. Instead of an amorphous, indefinable quality of the contracting parties, bargaining power may now be characterized as a series of discrete inputs that can be identified, evaluated, exchanged and owned. In essence, bargaining power may be treated as property or a commodity that in turn serves as a protection against unwanted manifestations of the self through coerced or unwitting exercises of consent. Additionally, by treating bargaining power as a fence or wall with which consumers guard their power to grant or withhold consent, we create a framework in which it is easier to observe that both sides to a transaction possess bargaining power. Although there may be situations in which state policing and regulation are appropriate to protect against absolute disparities of bargaining power, recognizing the potential for bargaining power on the consumer side of the transaction is crucial for maintaining the personal responsibility that makes possible individual access to contract