The Evolution of the Right to Exclude - More than a Property Right, a Privacy Right

More than two hundred years ago, William Blackstone defined the right of property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” This concept, commonly referred to as the Right to Exclude, has been arguably one of the most significant and essential elements in defining our understanding of what constitutes property in the United States. Since Blackstone’s description of property in the mid-eighteenth century, the right to exclude others has emerged as the single most important factor in determining the existence of private property. Historically, the right to exclude concerns the relationship between people with respect to things, “such that the so-called owner can exclude others from certain activities or permit others to engage in those activities and in either case secure assistance of the law in carrying out this decision.” But, from a present-day perspective, the right to exclude is so much more than a property right that defines the existence of private property and the relationships between owners and things. It is a right that has evolved beyond the legal constructs of traditional property law to also encompass legal entitlements and benefits possessed by one person over another irrespective of the legal relationship between such person and the thing in which the right is claimed. This Article explores the evolution of right to exclude beyond being an essential and fundamental property right associated primarily with interests in “things” (i.e., in rem conception of property rights) to also being the societal compass that helps form reasonable expectations of privacy that guide us in our dealings and relationships with one another (i.e., in personam conception of property rights). This Article also addresses how this new understanding of the right to exclude may be used to resolve expanding privacy concerns, particularly in the wake of advanced surveillance technology.