Privacy As/And Civil Rights

32 Pages Posted: 22 Mar 2022 Last revised: 10 May 2023

See all articles by Tiffany C. Li

Tiffany C. Li

University of San Francisco - School of Law; Yale Law School - Information Society Project; Yale Law School - Information Society Project

Date Written: 2021

Abstract

Decades have passed since the modern American civil rights movement began, but the fight for equality is far from over. Systemic racism, sexism, and discrimination against many marginalized groups is still rampant in our society. Tensions rose to a fever pitch in 2020, with a summer of Black Lives Matters protests, sparked by the police killing of George Floyd, leading in to an attempted armed insurrection and attack on the U.S. Capitol on January 6, 2021. Asian-Americans faced rising rates of racism and hate crimes , spurred in part by inflammatory statements from the then-sitting President of the United States. Members of the LGBT community faced attacks on their civil rights during the Trump administration, including a rolling back of protections awarded to transgender individuals.

At the same time, the world faced a deadly pandemic that exposed the inequalities tearing the fabric of our society. The battle for civil rights is clearly not over, and the nation and the world have faced setbacks in the fight for equality, brought out by the pandemic, political pressures, and other factors. Meanwhile, the role of technology is also changing, with new technologies like facial recognition, artificial intelligence, and connected devices, offering new threats and perhaps new hope for civil rights. To understand privacy at our current point in time, we must consider the role of privacy in civil rights—and even, as scholars like Alvaro Bedoya have suggested, privacy itself as a civil right.

This Article is an attempt to expand upon the work of privacy and civil rights scholars in conceptualizing privacy as a civil right and situating this concept within the broader field of privacy studies. This Article builds on the work of scholars who have analyzed critical dimensions of privacy and privacy law, and who have advocated for changes in privacy law that can move our society forward to protect privacy and equality for all.

Part I provides an overview of civil rights law in the United States and the unequal application of privacy protections to different people. Part II examines ways in which privacy can enhance or support civil rights and equality, including potentially through the concept of cyber civil rights. Part III considers if, due to the inextricable links between privacy and civil rights protections, privacy itself ought to be considered a civil right. Part IV also looks to framings of privacy in constitutional law, tort law, and sectoral consumer protection law to analyze how a civil rights framework might resolve existing equity gaps in privacy law. Finally, Part V provides recommendations for how to better shape privacy law to protect both privacy and equality for all.

Keywords: privacy, civil rights, privacy rights, technology, surveillance

Suggested Citation

Li, Tiffany, Privacy As/And Civil Rights (2021). Berkeley Technology Law Journal, Volume 36, Issue 3 (2021), Available at SSRN: https://ssrn.com/abstract=3851404 or http://dx.doi.org/10.2139/ssrn.3851404

Tiffany Li (Contact Author)

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

Yale Law School - Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Yale Law School - Information Society Project ( email )

New Haven, CT

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