30 Harvard Journal of Law and Technology 425 (2017)
65 Pages Posted: 3 Nov 2016 Last revised: 10 Jun 2017
Date Written: November 2, 2016
Today, everyone is watched. While surveillance is not new, “mass surveillance” is a relatively recent phenomenon. The mainstreaming of surveillance has helped spark an antisurveillance, pro-privacy movement that extends across legal scholarship, policy debates, civil rights advocacy, political discourse, and public consciousness. There is much to praise in this burgeoning privacy movement, but also much to criticize. Privacy’s popularity hit this peak only when elites and members of mainstream society were targeted for surveillance, which means that this popularity is in many ways driven by self-interest rather than principle. If we fail to fully confront the particular convergence of interests that led to the current pro-privacy, antisurveillance movement, the result is likely to be an uneven and unjust distribution of privacy protections. The current movement does too little to acknowledge the long, dark history of surveillance of marginalized populations and gives too little thought to what that history means for the future of privacy. The fact that surveillance has been made democratic provides a unique opportunity to make privacy democratic, but this revolutionary possibility can only be realized by addressing longstanding race, gender, and class inequalities in the theory and practice of privacy.
Keywords: Privacy, Surveillance, Intersectionality, Critical Race Theory, Feminism, Stop and Frisk, Criminal Law, Poverty, Homelessness, Technology, Body Cameras, Revenge Porn, Derrick Bell, Kimberle Crenshaw, interest convergence
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