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As I’ve intimated to at several turns but now fully confront, government surveillance is not the only threat to the privacy of marginalized communities. Privatized surveillance – by corporations and by other individuals – also exacts a heavy toll. Privatized surveillance has many lenses focused on many targets: employers at their employees, surveillance capitalists at consumers, and individuals at one another.1 Each instantiation of privatized surveillance renders us less legally protected from additional surveillance, both because it erodes the degree to which we have kept information “secret” ex ante (a precondition for legal privacy rights, as discussed in Chapter 1), and because the surveillance data itself is often used by other surveillers – the government and corporations.
Broadly speaking, both privacy doctrine and public discourse suggest that the right to privacy is significantly diminished once one enters the public realm or once one’s information is shared with others.1 In fact, certain doctrines provide that the right to privacy while in public is nearly nonexistent, that privacy is more or less “dead” once you walk out your front door or expose your activities to anyone else – even if you are fortunate enough to have your own property and still be on it.2 Pursuant to this conception of the right to privacy, privacy is synonymous with secrecy – and, as described by Daniel Solove, this “secrecy paradigm” greatly limits legal protection for privacy.
Perhaps not surprisingly given the government’s widespread criminal and administrative surveillance regimes, the government possesses – and then sometimes discloses – large amounts of our personal information. As in the case of a police officer threatening to out a teenage boy’s queer sexuality to a relative,1 sometimes these disclosures are ad hoc or one-off. But other times, such as pill lines in prisons where people’s HIV or mental health medications may be disclosed or broadcast to others in the line, the outings are more systematic and routine.2 Thus far, I have focused largely on solutions to problems of privacy while navigating (physical or online/cyber/digital) public space. This chapter and the next turn from problems of public privacy to issues of so-called informational privacy – unconsented to disclosure of information about someone. In other words, problems of outing. Here, I focus on government disclosures before turning in the final chapter to private-party disclosures.
What can be done about the relative lack of doctrinal protections for privacy while in public? How can society – and the law – begin to recognize and appreciate that privacy while navigating public space is of critical importance, particularly for marginalized communities, and worthy of doctrinal protection? In this chapter, after first elaborating and deepening extant proffered justifications for a right to public privacy, I bolster these justifications by underscoring what is, perhaps, a more direct constitutional/doctrinal value served by a right to public privacy. In addition to facilitating future speech and attempts to freely associate (as rightly emphasized by many defenders of public privacy), attempts to preserve a degree of privacy or anonymity in public (often undertaken by members of marginalized groups) are frequently a form of performative and expressive opposition to an ever expanding surveillance society and, as explained in Chapter 3, may be protected as symbolic, expressive conduct under the First Amendment.
This chapter turns to the implications, or payoffs, of a theory of performative privacy. There are both doctrinal and discursive benefits to conceptualizing efforts to maintain privacy in public as acts of performative privacy.
Privacy often suffers in courts of law and as a legislative or regulatory priority. Privacy, in effect, is marginalized as a right and frequently ranked below security or law enforcement concerns. Often it is even ranked below administrative, personal, or corporate convenience. At the same time, privacy is of acute significance for members of marginalized communities – queer folk, racial and religious minorities, women, immigrants, people living with disabilities, people living in poverty, workers, and those at the intersections.
Our society – both American and global – faces profound challenges, inequality and oppression foremost among them. Tragically, such inequality and subordination are longstanding, but are in some ways being exacerbated by technological advances – which themselves are unequally distributed. Robust privacy rights won’t solve all these problems. Obviously. But they can help.
If a right exists, bedrock principles of American law generally demand that the right be equally available to all. So unassailable is this tenet that the US Supreme Court etched the phrase, “Equal Justice Under Law,” on the front of the court building in the 1930s. A plaintiff who is black should have the same substantive law applied to their claim as a plaintiff who is white, with similar results for similar claims.1 And although concrete evidence of systematic, unequal judicial results is sometimes hard to uncover, it is widely acknowledged that in many contexts the law does not, in fact, operate with an even hand.2 The white plaintiff prevails where the black plaintiff fails. Can equality, as a principle of American law, become more than hortatory? How can the law be adjusted to operate more equally, and how can those adjustments be doctrinally justified and grounded? This chapter seeks to answer these questions in a particular legal context – the tort of public disclosure of private facts – and to draw lessons from those results for privacy tort reform and the constitutionalization of tort law more broadly.
Limited legal protections for privacy leave minority communities vulnerable to concrete injuries and violence when their information is exposed. In Privacy at the Margins, Scott Skinner-Thompson highlights why privacy is of acute importance for marginalized groups. He explains how privacy can serve as a form of expressive resistance to government and corporate surveillance regimes - furthering equality goals - and demonstrates why efforts undertaken by vulnerable groups (queer folks, women, and racial and religious minorities) to protect their privacy should be entitled to constitutional protection under the First Amendment and related equality provisions. By examining the ways even limited privacy can enrich and enhance our lives at the margins in material ways, this work shows how privacy can be transformed from a liberal affectation to a legal tool of liberation from oppression.
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