Dismantling the “Black Opticon”: Privacy, Race Equity, and Online Data-Protection Reform

Article Source: The Yale Law Journal Forum, Vol. 131, 2022
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Federal privacy law has failed to address privacy problems that disproportionately affect African Americans, such as oversurveillance, discrimination, and fraud. New state and federal privacy laws could better serve their interests.


Policy Relevance:

Race-conscious policies would better address African Americans’ privacy concerns.


Key Takeaways:
  • Online platforms like Facebook, Google, and Apple have prioritized free speech over privacy protection and antiracist measures.
  • Black Americans face a Black Opticon comprised of three elements:
    • Excessive and discriminatory surveillance.
    • Targeted exclusion from online opportunities.
    • Exploitive online predation and financial fraud.
  • Excessive surveillance of African Americans includes police and FBI use of Geofeedia, which uses data from social media feeds to track Black Lives Matter protesters.
  • Racial discrimination by online platforms includes advertising that excludes consumers of color from housing and credit services, and facilitating unequal access to ridesharing and lodging services.
  • The Federal Trade Commission (FTC) has found that Native Americans, Latinos, African Americans, and low-income consumers are disproportionately affected by fraud and false advertising.
  • Privacy legislation should address harm to specific groups, including communities of color, rather than merely addressing generic harms.
  • An African American Online Equity Agenda (AAOEA) would identify privacy proposals that advance the interests of African Americans; improved policies would:
    • Recognize that privacy is unequally distributed on racial lines.
    • Recognize that race-neutral policy may not have race-neutral effects.
    • Eliminate race-based discriminatory oversurveillance.
    • Prohibit marketing practices that discriminate on the basis of race.
    • Reduce fraud and deceit that targets African Americans.
  • The Virginia Consumer Data Protection Act (VCDPA) was supported by racially diverse legislators, but does not explicitly address the interests of African Americans, and may be too weak; the VCDPA treats racial data as "sensitive," which could limit the reach of race-conscious programs intended to remedy discrimination.
  • Congressional funding for a privacy division at the FTC could support the agency’s race-conscious antidiscrimination agenda and further FTC action against unfair trade practices that disproportionately affect people of color.
  • The Data Protection Act of 2021 (DPA) would create a federal data-protection agency with a Civil Rights Office to regulate high-risk data practices such as those involving race; this bill is unusual in calling for equitable privacy and platform governance.



Anita Allen

About Anita Allen

Anita L. Allen is an expert on privacy law, bioethics, and contemporary values, and is recognized for her scholarship about legal philosophy, women’s rights, and race relations. In 2010 she was appointed by President Obama to the Presidential Commission for the Study of Bioethical Issues.