Privacy is a Civil Right
“Privacy is not just transactional. Privacy is a civil right,” Valentin stated on the panel.1 Historically, the concept of the right to privacy in the United States has been shaped by Louis Brandeis, who first articulated privacy in 1890 as “the right to be let alone.”2 Later, as a Supreme Court Justice, he explained how the principles of the Fourth Amendment include protection of privacy against the state, enabling all citizens to conceal their unexpressed beliefs, political dissent, thoughts, and emotions from government surveillance.3 Justice Brandeis saw anonymity as a precondition for freedom of thought.4 In today’s networked world, we continue to struggle with balancing the right to dissent, organize, and speak truth to power with the right to feel safe and protected, and to experience digital sanctuary. The right to privacy should include ensuring freedom from the predatory business practices that replicate outlawed models of discrimination.
Privacy should mean personal autonomy and agency, but commercial data practices increasingly impede the autonomy and agency of individuals who belong to marginalized communities.5 Black people, women, LGBTQ+ individuals, persons with disabilities, and immigrants and refugees have long fought for civil rights protections in the brick-and-mortar economy. Discriminatory practices have expanded into the online world, but enforcement against that inequity has been insufficient. Data is used for discriminatory purposes, with even innocuous data points becoming proxies for protected classes, and policymakers cannot ignore these tangible bad outcomes. Ultimately, everyone deserves the “right to determine what information is collected on you, how it’s stored, and what it’s used for,” as Shields argued. Our laws should be updated to recognize and address discrimination brought about through harmful commercial data and surveillance practices.6
Ultimately, everyone deserves the “right to determine what information is collected on you, how it’s stored, and what it’s used for."
A number of federal civil rights statutes currently exist to protect individuals from unjust treatment by various institutions.7 These statutes prohibit different types of discrimination, are applied under different circumstances, and are intended to safeguard specific classes of individuals with legally protected characteristics.8 For instance, Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, national origin, or sex, and Title II of the act bars discrimination on the basis of race, color, religion, or national origin in public accommodations.9 The Fair Housing Act, enacted in 1968, prohibits discrimination in the sale or rental of housing on the basis of race, color, religion, national origin, sex, disability, or familial status.10 The Equal Credit Opportunity Act, enacted in 1974, prohibits discrimination against credit applicants on the basis of race, color, religion, national origin, sex, marital status, age, or source of income.11
These laws have been instrumental in addressing some of the injustices faced by marginalized communities in the United States, especially Black communities. As Ochillo explained in her opening remarks:
Landmark legislation of the civil rights movement that was passed in the 1960s was built on a movement of resistance and sacrifice that lasted for centuries since the first group of slaves arrived on American shores. Hundreds of years later, after people of all races were confronted with the brutality and leftover horrors of oppression, Congress passed civil rights laws to ensure that everyone had the right to be free from certain types of discrimination, ensuring that every American has the right to fair and equal treatment.
But the struggle to enforce these laws continues to this day, and data practices have enabled historical forms of oppression and discrimination to carry over into the digital realm with offline consequences. As Shields noted, “Like a virus, discriminations from before have mutated.”12 Commercial data practices enable, among other things, voter suppression, digital redlining, discriminatory policing, retail discrimination, digital inequity, the amplification of white supremacy, identify theft, and the endangerment of personal safety.13 By collecting and using data, companies can leverage new data and surveillance tools that enable racial profiling and discrimination.14 Further, automating decision-making using data and predictive tools can discriminate against marginalized communities15 and exacerbate hidden biases in data.16 Experts have long known that data practices can lead to discriminatory outcomes in access to housing, jobs, and more. Therefore, as Shields stated, protecting privacy is essential to “shift[ing] power imbalances in a mostly unregulated data space.”
Civil rights protections must also apply to the digital economy. As Ochillo elaborated,
When [civil rights] laws were codified, no one imagined a scenario where tech platforms would be able to discriminate online in ways that legislation intended to prevent in our neighborhoods. Today, my data profile can determine whether I will have access to certain types of employment or housing opportunities, or whether I will be excluded. It will have an impact on how much I make or pay for a mortgage. And the profiles that companies create about me behind closed doors will live online indefinitely and remain difficult for me to change. That is why we need privacy laws that acknowledge enduring economic, political, and cultural consequences of discrimination that still exists in our country today.17
Without incorporating civil rights protections into privacy legislation, the situation Ochillo described is unlikely to change.
Companies should be prohibited from using individuals’ personal data to discriminate against members of marginalized communities. Many civil society organizations, including Color of Change and New America’s Open Technology Institute, have called upon Congress to protect civil rights, equity, and equal opportunity in the digital ecosystem.18 In April 2019, 26 civil society organizations sent a letter to Congress on the need for federal privacy legislation to address the discriminatory effects of commercial data practices, arguing that “personal data are the raw materials that fuel discrimination. … For too long, corporations have ignored the digital pollution that their commercial data practices generate; they must be held accountable for the negative externalities of their business models.”19 Privacy legislation must address these harms.
Citations
- Francella Ochillo, Gaurav Laroia, Erin Shields, Miranda Bogen, Alisa Valentin, Priscilla Gonzalez, Brandi Collins-Dexter, “Centering Civil Rights in the Privacy Debate,” (Panel, Washington, DC, May 9, 2019), source.
- Samuel D. Warren, Louis D. Brandeis,“The Right to Privacy,” Harvard Law Review, 4, (December 1890), source.
- Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, L., dissenting).
- Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, L., dissenting).
- See, e.g., Michele Gilman and Rebecca Green, “The Surveillance Gap: The Harms of Extreme Privacy and Data Marginalization,” NYU Review of Law and Social Change 42 (2018): 253-307, source.
- Francella Ochillo, Gaurav Laroia, Erin Shields, Miranda Bogen, Alisa Valentin, Priscilla Gonzalez, Brandi Collins-Dexter, “Centering Civil Rights in the Privacy Debate,” (Panel, Washington, DC, May 9, 2019), source.
- Jody Feder, Federal Civil Rights Statutes: A Primer. Congressional Research Service, March 26, 2012, source.
- Meghan Droste. “What are ‘Protected Classes’?” Subscript Law, December 4, 2018, source.
- 42 U.S.C. §§1973 et seq. Public accommodations are defined as establishments that serve the public with a connection to interstate commerce. They include hotels and motels, restaurants and bars, and entertainment venues like movie theaters and sports arenas.
- 42 U.S.C. §§3601 et seq.
- 15 U.S.C. §§1691 et seq.
- Francella Ochillo, Gaurav Laroia, Erin Shields, Miranda Bogen, Alisa Valentin, Priscilla Gonzalez, Brandi Collins-Dexter, “Centering Civil Rights in the Privacy Debate,” (Panel, Washington, DC, May 9, 2019), source.
- “Letter to Congress on Civil Rights and Privacy,” (Letter from Access Now et al., to the Federal Communications Commission, April 19, 2019), source.
- See, e.g., Caroline Haskins, “Amazon’s Home Security Company Is Turning Everyone Into Cops,” Motherboard, February 7, 2019, source.
- See, e.g., Miranda Bogen and Aaron Rieke, Help Wanted: An Examination of Hiring Algorithms, Equity, and Bias, (Washington, DC: Upturn, December 2018), source.
- See, e.g., John Logan Koepke and David G. Robinson, “Danger Ahead: Risk Assessment and the Future of Bail Reform,” Washington Law Review, Vol. 93, (December 25, 2018), source. Predictive tools like pretrial risk assessments in the criminal justice system may reinforce racial disparities.
- Francella Ochillo, Gaurav Laroia, Erin Shields, Miranda Bogen, Alisa Valentin, Priscilla Gonzalez, Brandi Collins-Dexter, “Centering Civil Rights in the Privacy Debate,” (Panel, Washington, DC, May 9, 2019), source.
- See, e.g., “OTI and Over 40 Civil Rights, Civil Liberties, and Consumer Groups Call on Congress to Address Data-Driven Discrimination,” New America, February 13, 2019, source.
- “Civil Rights, Civil Liberties, and Consumer Groups Urge Congress to Protect Marginalized Communities from Discriminatory Privacy Abuses,” New America, April 19, 2019,source.