The Commodification of Public Land Records

The United States deed recording system alters the “first in time, first in right” doctrine to enable good faith purchasers to record their deeds to protect themselves against prior unrecorded conveyances and to provide constructive notice of their interests to potential subsequent purchasers. Constructive notice, however, works only when land records are available for public inspection, a practice that had long proved uncontroversial. For centuries, deed archives were almost exclusively patronized by land-transacting parties because the difficulty and cost of title examination deterred nearly everyone else. The modern information economy, however, propelled this staid corner of property law into a computer age in which land records are electronically maintained and instantaneously accessible over the internet. That development transformed public land records into a marketable commodity independent of the deed recording system’s notice-giving function. In response to booming demand for big data, content extracted from public land records (name, home address, marital status, among other personal information) is now actively traded on the internet and routinely purchased by commercial firms for targeted marketing and customer prospecting. Data from public land records are now more accessible than ever before, representing a win for transparency, but, as tragically illustrated by the recent high-profile attack against a federal judge, an erosion of privacy that can dangerously equip wrongdoers with on-demand entrée to personal information. This Article provides the first scholarly account of the deed recording system’s transformation from a notice-giving mechanism of property law to a primary supplier of commodified data for sale in the modern information economy. The Article surveys the traditional functions of deed recording, describes the recent migration of deeds from paper to electronic form as the predicate for commodification, and considers the implications of electronic disclosure for privacy, transparency, and the regulation of anonymous entity ownership. The Article concludes by appraising the efficacy of recent privacy reforms under consideration by Congress and state legislatures, and by outlining voluntary precautions that homeowners can implement under existing law