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Michael Heller is vice-dean and Lawrence A. Wien Professor at Columbia Law School. James Salzman is the Donald Bren Distinguished Professor, with joint appointments at the UCLA Law School and UCSB School of the Environment. They are the authors of Mine! How the Hidden Rules of Ownership Control Our Lives, from which this essay has been adapted.

James Beach is a large guy, over six feet tall. On a United Airlines flight, the businessman lowered his tray table after take-off and attached his Knee Defender, a simple plastic clamp available for $21.95 that locks the seat in front. Its website claims the clamp will “stop reclining seats on airplanes so your knees won’t have to.” Assured of his workspace, Mr. Beach opened his laptop.

The Knee Defender claims are real. When the passenger sitting in front of Mr. Beach tried to recline, her seat didn’t budge. Outraged, she slammed her seat back. Things escalated enough that the pilot changed course for an emergency landing and both passengers were removed from the plane.

Who owns the space behind your airplane seat: you, reclining or the laptop user behind? Or to take this dilemma in another, more common, direction, who owns your online profile? You, clicking around, or Facebook selling your most intimate data? Turns out, these questions are both the same puzzle and they share a single answer. The prize goes to those who know how the simple rules of ownership really work.

When we ask audiences who’s the jerk, who’s in the right, with the airplane seat, the audience always splits 50/50 – it’s the right to recline versus the right to knee defence. And everyone looks at each other with incredulity. How can anyone possibly disagree?

The answer lies in how each of us understands whose wedge of space it is.

The recliner’s view is simple: Her armrest button reclines her seat, so the space belongs to her. My home is my castle and anything attached to it is also mine.

“Attachment” is the most important ownership principle you’ve never heard of. It’s why landowners in Alberta can extract underground oil, why British Columbia can sustainably manage fisheries and why occasional homeowners feel justified in shotgun blasting drones hovering above their backyards. Attachment is what translates two-dimensional boarding passes, land deeds and maps into three-dimensional control of valuable resources.

But attachment is not our only ownership story. At the beginning of every flight, all seats are in the “full, upright and locked position.” When the plane first took off, Mr. Beach had exclusive use of the space in front of him. He had first dibs. “First-in-time” is a second core story for claiming mine. Kids assert it on the playground; adults invoke it up in the air. “It’s mine because I was first.”

And there’s a third story in play. Recall that Mr. Beach actually took physical control of the wedge with his Knee Defender. Possession is nine-tenths of the law. “It’s mine because I’m holding onto it.” Possession means I get to defend my knees and my workspace.

Air travel brings into sharp focus three conflicting rules – attachment, first-in-time and possession. Each side picks the story that gives it the moral high ground, each side wants ownership bent toward its view. But there is no natural, correct answer to these battles of mine versus mine. Ownership is always up for grabs.

It turns out that passengers don’t really own the wedges of reclining space. The airlines do. And the airlines set their own rules on seat design, creating turbulence in the skies as we all get mad at each other.

Airlines have managed to avoid blame by using a sophisticated ownership strategy that we call “strategic ambiguity.” When ownership is unclear – and it’s unclear far more often than you might imagine – people mostly fall back on politeness and good manners.

But as airlines continue to cram more seats into each flight, unspoken rules over the front-to-back squeeze are breaking down and everyone ends up looking unreasonable.

This should be the airlines’ problem to fix, not our private dilemma.

The identical conflict is playing out today on the internet, a far more consequential and less visible arena than airplane seats. Who owns the information we inadvertently supply companies with as we absent-mindedly click from website to website? Our clickstreams reveal much of our private lives – what we buy, whom we follow, where we live, even how we vote. Facebook, Google and other internet titans earn billions in advertising fees by assembling and then selling uncanny profiles based on our likes and looks.

Facebook and Google are making an attachment claim as they lean their data trackers into our virtual laps. Our data attach to their apps. And they go further, asserting ownership based on labour – the fourth ancient ownership story. “It’s ours because we worked for it.” They say attachment and labour earn them the right to collect our data and then sell ads that stalk us creepily around the Internet.

But we can contest this claim.

The Knee Defender may seem like a silly novelty item, but it’s an emblem of one of the great engines for innovation in our society: As valued resources become scarcer, people compete more intensely to impose their preferred ownership story, entrepreneurs find ways to profit and regulators often fall behind.

The same clash profoundly reshaped settlement in the Great Plains in the 1800s – but there, it was farmers against ranchers. The huge cattle drives we love to watch in Westerns existed only for a few decades. The numberless herds being moved to market were often roaming over private land, but homesteaders had no ability to keep them out.

Then in 1874, Joseph Glidden patented his double-strand barbed wire, hailed as “The Greatest Discovery of the Age.” This invention, as simple as the Knee Defender, suddenly provided a cheap, effective tool to exclude cattle, drawing a line where homesteaders could make their stand. Small ranchers went out of business as they had no path to get cattle to market. For many Native Americans, barbed wire – ”the Devil’s rope” – effectively ended their nomadic way of life.

Changes in the technology of ownership can be painful, embittering the range wars on the Great Plains and the knee wars at 35,000 feet. Just as barbed wire gave farmers a way to fence out cattle, the Knee Defender gives passengers a cheap tool to exclude recliners. Both technologies offer people an effective way to assert their preferred ownership story over ambiguously owned resources.

Clickstreams are no different. Those who know the simple stories of ownership can push back against the tech companies. We can claim our clickstreams based on being first-in-time, like James Beach did when he opened his laptop.

And we can assert self-ownership, “It’s mine because it comes from my body.” This is the fifth ownership story and it’s every bit as valid as the labour claim. (The sixth and final ownership story is based on family, “It’s mine because I’m part of the family” – that’s it! There are just six simple stories that everyone uses to claim everything in the world.)

One of the central questions for our time is choosing the story that resolves ownership ambiguity online. First-in-time or attachment? Self-ownership or labour?

Canada – like the European Union, California and a few other places­ – has taken small steps toward giving us the digital equivalent of Knee Defenders and barbed wire. “It’s mine. Keep out!” But Canada’s data privacy law – the Personal Information Protection and Electronic Documents Act (PIPEDA) – first enacted back in 2000, is now seriously outdated. A somewhat better approach, the Consumer Privacy Protection Act (Bill C-11) has been stuck in Parliament since its first reading in the 2020 House of Commons session.

Better still would be a law that focused less on data privacy and more on data ownership. With data privacy, we just have the right to say, “No, leave me alone.” But with data ownership, we get an added right: We can also say, “yes, you can have my data if you pay me.” For now, Canadians don’t have much say at all, as the tech companies monetize our lives.

Here’s the point. Conflicts of mine versus mine go on around us all the time mostly out of view, until something like a Knee Defender or barbed wire makes them painfully visible. Then, we have to choose, not just for reclining seats and online clickstreams but for every resource battle from climate change to wealth inequality. Ownership is always a story-telling battle. And if you are not the one advocating for who gets what, then someone else is choosing for you.

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