Privacy, Practice, and Performance

61 Pages Posted: 18 Feb 2021 Last revised: 15 Apr 2021

Date Written: February 1, 2021

Abstract

Privacy law is at a crossroads. In the last two years, U.S. policymakers have introduced more than 50 proposals for comprehensive privacy legislation, most of which look roughly the same: they all combine a series of individual rights with internal compliance. The conventional wisdom in privacy scholarship explains this uniformity by looking to catalyzing precedent: the General Data Protection Regulation in Europe or the California Consumer Privacy Act.

This article challenges that emerging consensus. Relying on contemporary sociological and critical studies scholarship, this article develops the concept of the social practice of privacy law and argues that recent privacy proposals in the U.S. look similar because the practices of privacy law are performative: they have socially constructed what we think privacy law is and should be. In other words, we have not only become accustomed to conceptualizing privacy law in a certain ways; we have come to see the rights-compliance model as the normal, ordinary, common sense modality of privacy law. So constructed, privacy law is flawed, with substantial negative effects for privacy, equality, and justice. Individual rights are misplaced weapons against the population-level harms of data-extractive capitalism. They also allow industry to weaponize our rights against us. Privacy law-as-compliance is even more troubling. It is internally inconsistent, protects the interests of the most powerful industry players, and elides informational capitalism’s substantive injustices.

This article provides a full critical account of the latest developments in privacy law, focusing on its practices rather than law on the books alone. It details and challenges current privacy law’s focus on individual rights and internal compliance. And it explores potential new directions for privacy law based on the developing law and political economy literature, including new practices and performances that center privacy law around principles of power, equality, and democracy.

Keywords: privacy, privacy law, law and political economy, sociolegal studies, performance studies, performativity, practice

Suggested Citation

Waldman, Ari Ezra, Privacy, Practice, and Performance (February 1, 2021). California Law Review, Vol. 110, Available at SSRN: https://ssrn.com/abstract=3784667 or http://dx.doi.org/10.2139/ssrn.3784667

Ari Ezra Waldman (Contact Author)

Northeastern University

416 Huntington Avenue
Boston, MA 02115
United States

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