Practice, Performance, and Privacy Law
60 Pages Posted: 18 Feb 2021
Date Written: February 1, 2021
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 is the first to challenge that emerging consensus. The conventional wisdom echoes the principles of legal formalism and ignores context. It also elides the fact that the practices codified in these laws long predate the GDPR and the CCPA. 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: their repetition has normalized them, socially constructing what we think privacy law is and should be. In other words, we have become accustomed to practicing privacy law in a certain way, and that acculturation has created 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, for the first time, a full, critical account of the performativity of privacy practices. 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
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