Recently, Professor Scott Skinner-Thompson (Colorado Law) published an excellent thought-provoking book, Privacy at the Margins (Cambridge University Press, 2020), which explores the important role that privacy plays for marginalized groups. The book is superb, and it is receiving the highest praise from leading scholars. For example, Dean Erwin Chemerinksy (Berkeley Law) proclaims that the book is “stunning in its originality, its clarity, and its insightful proposals for change.”
I am delighted to have the opportunity to interview Scott about the ideas and arguments in his book.
SOLOVE: What led you to initially focus on the role of privacy in improving the lives of different marginalized groups?
SKINNER-THOMPSON: When in practice, I partnered with the ACLU LGBT & HIV Project to research states that had strong state constitutional protections for privacy in order to bring a challenge to laws the restrict people’s ability to change the gender marker on government identification documents. We discovered that Alaska both had robust constitutional informational privacy law, and at the same time required proof of some kind of surgery before allowing someone to accurately list their gender on their driver’s license. The ACLU subsequently challenged Alaska’s policy arguing that the surgery requirement would out the many trans people who were unable to obtain accurate IDs because of the surgery requirement, potentially subjecting them to discrimination, harassment, or worse if their trans identity were disclosed when presenting an ID that didn’t correspond with their gender expression. Through that research, I learned some of the ways that administrative surveillance outs many transgender people and others who beautifully complicate the gender binary. From there, I began to learn more about how different surveillance regimes disproportionately targeted and impacted a range of different marginalized groups, including racial minorities, religious minorities, and women.
SOLOVE: More broadly, you emphasize that marginalized communities are subject to both disparate treatment and disparate impact when it comes to privacy violations. How so?
SKINNER-THOMPSON: Whether it be law enforcement surveillance of black and brown communities, the criminalization of “walking while trans,” laws that target—or strip—Muslim women who cover their heads, or surveillance that is implemented as part of the provision of America’s modest social services, many different marginalized groups are disproportionately subject to government surveillance and the harms that flow from that surveillance, including stigmatization, incarceration, or violence. But even assuming that privacy violations were evenly distributed across society (they are not), any such intrusion disproportionately impacts members of marginalized communities who are unable to absorb the social costs that flow from a privacy violation or vindicate the privacy loss in courts. So, for example, when wrestler Hulk Hogan’s sexual privacy is violated, he is able to bring a lawsuit and successfully persuade courts that notwithstanding his generally cavalier attitude toward his sex life, the distribution of a sex tape of him was a privacy violation entitling him to millions of dollars. Conversely, when young women are subject to revenge pornography, they may not only be unjustly humiliated, but it may prove a barrier to finding employment. And, should they bring a suit, there are examples of the law being applied differently than in Hulk Hogan’s suit—that is, courts have at times said that because the images were, for example, first publicly disclosed on another revenge porn website the information was not kept completely secret and therefore recovery is barred from a website subsequently disclosed the images.
SKINNER-THOMPSON: Take what you so helpfully coined as the “secrecy paradigm”—the idea that once information is exposed to another, legal protections over that information whether it be vis-à-vis the government in the Fourth Amendment context or vis-à-vis other private individuals and corporations in the privacy tort context, largely disappear. People of privilege are able to build the physical and/or technological walls necessary to keep information secret in the first instance. But for people who are housing insecure—living on the streets, in homeless shelters or in densely-populated and heavily surveilled housing projects—keeping information secret is all but impossible. This lack of lived privacy means that there is no legal privacy protections either, further allowing state and private surveillance to document and control the lives of those unable to build privacy protections, creating a feedback loop of privacy loss.
SOLOVE: You emphasize that the traditional way of viewing privacy – as about protecting people’s dignity and autonomy by preserving space for developing their identities – is too detached and incomplete a way to understand the value of privacy for marginalized groups. In what ways is privacy valuable for people in such groups? Why does recognizing this fact matter?
SKINNER-THOMPSON: Right. As you’ve noted in your scholarship, privacy can be a coat of many colors—it can mean a lot of different things and serve as an adjuvant to a lot of other values, including dignity and autonomy. I don’t disagree with those frames. But I believe that by more forcefully underscoring the connection between privacy and the concrete, material harms suffered by marginalized communities when they are subject to privacy loss, both courts and society may begin to appreciate that privacy matters—for us all, but perhaps to different degrees. Put differently, for members of many marginalized groups avoiding surveillance isn’t just key to dignity or autonomy, it’s a critical form of harm reduction and life preservation. And the lack of privacy in public imposes not just individual harms, but group harms—pushing whole segments of society from the public square, preventing them from contributing to the social tableau and influencing social norms.
Moreover, many frames for privacy focus on its inward looking dimensions, such as creating space for the development of thoughts and identity. Again, I think that is undoubtedly true. But through my research on the ways in which different marginalized communities try to protect their privacy, I also realize that functional efforts to maintain privacy are also outward facing—they communicate resistance to surveillance regimes and they help shape societal norms about what is—and isn’t—a reasonable expectation of privacy. And indeed, the state often targets people who take steps to protect their privacy for additional surveillance, flagging it as suspicious or intimidating. The massive, masked protests in Hong Kong as well as the Occupy Wall Street protests where people wore Guy Fawkes masks serve as important examples of the role of privacy—in this instance face coverings—as a form of symbolic resistance. I think that recognizing that efforts to maintain privacy are outwardly expressive not only helps us better appreciate the agency of those seeking to protect their privacy, but also has doctrinal payoffs when it comes to the First Amendment. If we understand that those who use Tor, wear a hoodie or mask, or resist gender conformity, are outwardly expressing symbolic resistance to surveillance, then efforts to target such people may run afoul of First Amendment protections for symbolic speech or expressive conduct.
SOLOVE: How does focusing on privacy’s expressive dimensions help vis-à-vis corporate surveillance, such as Clearview AI who has claimed an unfettered First Amendment right to collect images from social media for the purpose of training their facial recognition software?
SKINNER-THOMPSON: The First Amendment has often been positioned as the enemy of privacy—and indeed the Supreme Court has at times cabined or limited privacy torts because they punish “speech”—the disclosure of the information at issue. So, the Court has held that if the information being disseminated was publically available, it runs afoul of the First Amendment. Companies like Clearview AI are taking advantage of this purportedly unfettered First Amendment right to gather information that is available publically to scrape social media websites for photos. But if we recognized that privacy not only advances First Amendment values indirectly by, for example, creating the space for thought and subsequent speech and anonymous speech, but was itself directly expressive, then the First Amendment claims by Clearview AI would be weakened by the competing First Amendment values served by those seeking privacy—seeking to resist the harvesting of their identities.
SOLOVE: If the law were to recognize your argument about the role privacy plays for marginalized groups, are there concrete ways that certain current areas of privacy law would change? What types of legal reforms would be necessary?
I hope so. One of the main goals of the book was to try to think about privacy in a way that both captured its material importance for marginalized groups and would lead to change on the ground—in doctrine. So, as to privacy torts, given that the Supreme Court has recognized that they are a form of state action subject to limitations by the First Amendment, I argue that there is room for the equality guarantees of the constitution to also shape the substance of privacy common law, empowering lawyers and judges to make the substance of privacy torts more attune to the unique, concrete harms suffered by different minority groups. For example, doctrine could be adjusted to consider that for many non-public figures, their information is less likely to be disseminated, but the dissemination of certain information—for example, someone’s gay sexuality—within limited confines can nevertheless be very damaging.
More broadly, and related to your recent work with Danielle Keats Citron, courts and legislators alike sometimes fail to appreciate the materiality of privacy loss. And my hope is that the book helps lawmakers and litigants appreciate that if they are able to underscore how privacy loss leads to direct, concrete material harms—particularly for marginalized groups—privacy claims will be on stronger doctrinal footing.
SOLOVE: Thanks, Scott, for your terrific insights. The book is Privacy at the Margins, and it is a must read!
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy and data security training. He also posts at his blog at LinkedIn, which has more than 1 million followers.
Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum an annual event designed for seasoned professionals.