Re: Abstract forms of property
Sun, 3 Jan 1999 00:25:21 EST

Criticizing the notion that we should recognize property rights in the electromagnetic spectrum, I wrote:

>>Both the libertarians stock solution to spectrum allocation and Coase's
>>preferred approach contravene existing property rights. Suppose, for
>>that I own a large ranch and wish to broadcast signals on my property,
>>house to the far-flung corners of my property. Suppose furthermore that my
>>private broadcasts will not reach off my land. Why should I have to seek
>>permission from someone who allegedly "owns" the spectrum on my land? Why
>>should I have to get a license from Coase's Broadcast Equipment Commission?
>>As long as my peaceable use of spectrum does not interfere with any
>>use, I should be allowed to broadcast as I see fit.

Robin Hanson replied:

>When exactly did these "existing property rights" exist?

Since that phrase refers to rights to the peaceable use of one's real and personal property, they have existed in abstract form since, oh, at least Anglo-Saxon England. That should suffice to show that such rights predate the FCC's claims, though one might make a stronger claim. As to the claims to specific property, Robin continues . . . .

>If you bought your
>US property in the last half century you surely realized that it came with
>FCC specified limits on local spectrum use. If you bought it two centuries
>ago it seems hard to say what spectrum rights it came with, as people weren't
>knowingly using the spectrum then.

Whether or not it "came with FCC specified limits" resolves nothing on the validity of the FCC's claim. I might purchase property knowing that some local thug *claims* the right to come and steal from my garden, but that has no bearing on my right to complain that his theft violates my property rights. Similar reasoning applies to the FCC's highly suspect claims--though the FCC will often enforce its claims with even less efficacy than a local thief!

At any rate, people *have* been knowingly using the electromagnetic spectrum for over two centuries. Recall, after all, that visible and infrared light, inter alia, constitute part of that spectrum. It makes little sense to say that the FCC has no claim over *one* frequency of radiation that I use solely on my property (say, the light and heat cast by my fireplace) while it does over another frequency (say, the frequency I use for my garage door opener).

>We could also say that two centuries ago each of us had an implicit right to
>walk anywhere we wanted on the moon, and so any auction of moon property now
>would violate those ancient rights. Isn't that a silly argument?

The counter-argument is hardly apposite, given nobody routinely walks on the moon in the course of peaceably using their pre-existing property. But, at any rate, I *would* regard as invalid the unsupported claim of any terrestrial body to the whole of the moon. In other words, I think it quite fair to say that if you use your property to travel to and improve the moon, you would stand quite within your rights to thumb your nose at earth-bound bureaucrats who claim that you are trespassing. The doctrine of adverse possession, if nothing else, would count in your favor.

>And even if someone's reasonably implicit rights were at some point in the
>past violated, it is not clear to me what that implies about current rights.
>As we all know, most land has been stolen many times over in the past.

The relation between the honest owner, the rascal who sells and resells, and the honest purchaser for value, has been called "the eternal triangle" of the law. Suffice it to say that it entails some complications. But, in brief, I offer the traditional approach to this problem under common law: Possession is good title against all the world but the party who suffered the theft. The rule makes sense for both instrumentalist reasons and (for those who care about such things) basic notions of justice.


T.0. Morrow