Your book immediately dives into some of the most alarming aspects of the digital age — namely, unchecked tracking of personal data by private companies and the government, which you describe as a kind of digital “Upside Down,” like the shadow realm in the TV show Stranger Things. The people, things, and groups with which we associate are all tracked by shady private actors, and our online identities are often invisible to ourselves. What can this data be used for? How does current privacy law intervene in the digital Upside Down?
Our online activities, our locations, even our vital statistics like heart rate and blood oxygen levels are being tracked by various actors to nearly limitless ends. Some of this information is certainly being used for relatively innocuous purposes, like to sell us products related to issues we may have searched online or liked on a social media post. But there is also a significant risk that the information that we believe is purely private, like the things we search, the stores we enter, or even our private conversations that a digital assistant may overhear and log, could be used to police and track us, or subject us to abuse, harassment, or investigation. If someone might engage in exploring some side of themselves that might find disfavor among dominant groups, like someone who is transgender or supports a particular political position, they could be targeted for such harassment. Once we understand that such activities could become exposed, we might be less willing to engage in activity that might lead to that kind of harassment, preventing us from becoming knowledgeable about an issue, or even ourselves. It also would inhibit our ability to find other like-minded people with whom we might collaborate to bring about positive social change that advances our interests and helps us achieve a degree of autonomy and self-determination.
Historically, groups like the NAACP and Southern Christian Leadership Conference harnessed the media to advance the cause of civil rights. Similarly, the Black Lives Matter movement was conceived on social media, with activists circulating video evidence of police violence and calls for justice online. How has the history of privacy law in the U.S. influenced where we are today? How is the law responding to online activism?聽
The revolutionaries who worked to free us from British rule in the 18th century were well aware of the need to have a private means of communicating, which is why one of the first acts of the Continental Congress was to create mail system spanning the colonies that was independent of the official postal system, in which communications were subject to inspection by loyalist officials. As technology emerged that made communication easier, Americans have passed legislation to protect our ability to use those technologies, like exempting electronic communications from things like wiretapping. Today, however, we have new technologies at our disposal that permit new types of communications, but the law has largely failed to catch up to protect our privacy with respect to such communications. What is more, what legislation does exist tends to immunize many social media companies from misuse of their platforms. The more we harness such tools to communicate and organize, such activities are largely exposed to surveillance by private companies and information about such activities can easily subject organizers to harassment and abuse.
In the post-Dobbs era, digital privacy has become hugely important to the politics of reproductive healthcare in America. In Texas, a new “bounty law” means that people seeking abortions across state lines can potentially be sued by other private citizens seeking a cash reward for turning them into the state. Subsequently, many people have tried to purge their online identities of anything that might betray their intention to seek an abortion. How can activists push for more privacy in a world without the protection of Roe v. Wade?
Activists, and even non-activist citizens, should be very concerned about the extent to which reproductive health is at risk because of the likelihood that government officials in states that have passed extreme legislation to curb such care will seize digital evidence to expose individuals who might seek it or the medical professionals who provide it. This could easily lead to the criminal prosecution of these individuals because of their online activities. It can also impact individuals in states that do not have extreme laws regarding reproductive care who may wish to aid loved ones in their pursuit of reproductive care. Because of this, in states where activists and average citizens can advocate for greater protections for their online activities, they should do so to shield the activities of individuals and groups from this sort of surveillance. As more states pass such legislation, it will make it harder for states with more extreme legislation regarding reproductive care to have an impact outside of their states. It is also possible that even in the states with more extreme laws regarding reproductive care, activists could also advocate for such privacy legislation to make investigation of individuals seeking such care harder to carry out.
You describe how the heterogeneity of institutions鈥攍ike the private sector, the legislative process, and the courts鈥攗sing our data offers both challenges and opportunities for reform. The main goal you describe for reform is maintaining the “integrity of identity” with digital privacy laws. Can you explain how these two ideas interrelate鈥攖he complexities of all these different institutions mining and using our data, and the call to legally maintain the “integrity of identity” online?
It is important to remember that institutions broadly defined, like legislatures, the courts, or even the private sector, are not monolithic. That is, the tendency of courts or legislatures in one state might be very different from those in another. Similarly, some market actors might be more willing to protect privacy than others. Because of this phenomenon, it offers advocates and average citizens the opportunity to find places that are more receptive to efforts to protect digital privacy and what I refer to as the 鈥渋ntegrity of identity鈥�: that is, the collection of rights鈥攍ike privacy and the ability to engage in activities that advance our self-determination鈥攖hat enable us to live as full and complete a life as possible. These notions鈥攖he fact that the institutions in our life are all very different and will present very different opportunities to maintain a sense of control over our lives鈥攎ake advocacy for social change that protects privacy more challenging, but also more possible.
The Private is Political offers a roadmap to reforming digital privacy law. What do you mean by “digital zoning,” and how could this proposed reform potentially protect consumers’ personal information and integrity of identity?
The concept of digital zoning borrows from such systems where regulators or private entities may 鈥済rade鈥� market actors鈥攁round things like automobile or even restaurant safety. When we have systems that identify market actors that have products that are safer than the products of other market actors, we are more likely to patronize those businesses that offer better and safer products and services. Digital zoning is my solution to issues of digital privacy. Through such a system we would categorize or 鈥渮one鈥� digital products and services in ways that help the consumer choose among such products and services that are more protective of privacy, thereby creating a market-driven 鈥渞ace to the top,鈥� where companies will compete with themselves to offer safer products to consumers.
Ray Brescia is the Associate Dean for Research & Intellectual Life and the Hon. Harold R. Tyler Professor in Law & Technology at Albany Law School. He is the author of Lawyer Nation: The Past, Present, and Future of the American Legal Profession and The Future of Change: How Technology Shapes Social Revolutions; and editor of Crisis Lawyering: Effective Legal Advocacy in Emergency Situations; and How Cities Will Save the World: Urban Innovation in the Face of Population Flows, Climate Change, and Economic Inequality.
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