Privacy Experts Anita Allen and Danielle Citron Discuss Fighting Racial Discrimination in Our Digital Lives

University of Pennsylvania law professor Anita Allen joins University of Virginia law professor Danielle Citron and UVA Law’s Dean Risa Goluboff to discuss privacy law as it specifically impacts people of color. In UVA’s podcast, Common Law, Professor Allen explains her framework for stopping surveillance, fraud, and exclusion targeting Black Americans online.

In this podcast, Professor Allen shares insights from her recent paper, “Dismantling the “Black Opticon”: Privacy, Race Equity, and Online Data-Protection Reform.”

Overview of “Fighting Racial Discrimination in Our Digital Lives” with Anita Allen, Danielle Citron and Risa Goluboff. Recorded July 21, 2022.

Summary

To better protect African Americans from over-surveillance, exclusion, and fraud, lawmakers could recognize that race-conscious privacy policies are needed to address the disadvantages that African Americans face online.

Main Points

• The “Black Opticon” refers to three disadvantages Black Americans encounter online.
  • Over-surveillance of Black Americans, which often occurs when others assume they are engaged in criminal activity.
  • Black Americans face targeted exclusion from certain opportunities.
  • Black Americans are targeted for exploitation and fraud, such as pyramid schemes.
• Some seemingly attractive privacy solutions have non-race-neutral consequences; race-neutral privacy laws have failed to address the “Black Opticon.”
  • Effective legislation names the groups most affected by the problem.
  • Instead of a neutral law saying that no one can discriminate in Facebook advertising, the law could specify that Facebook cannot sell advertising to companies that discriminate against African-Americans, Hispanics, the elderly, and those with disabilities.
• Prohibitions on the collection of data about race could interfere with racial remedies and racial rights such as affirmative action, or prevent public services from reaching groups that need them; Americans have nothing to gain by avoiding public discussion of race.
• Virginia’s privacy law was introduced by people of color, but fails to effectively address privacy issues for African Americans.
  • The law defines race as “sensitive” data, yet allows consumers to permit racial data collection.
  • The law does not give consumers a private right of action.
• Lawmakers could replace the dominant opt-in/opt-out procedural model of privacy with substantive, inalienable privacy rights, which public authorities could override in an emergency.
• Historically, constitutional privacy rights were unavailable to women and Black Americans; rather, privacy rights protected seclusion and abuse of women and slaves in the home.
• Civil liberties constitute “freedom from” certain harms, but civil rights are positive entitlements to equal opportunities, certain “freedoms to” made available to all; privacy is best conceived of as a civil right.
• Until bigotry and invidious attitudes have been abolished, privacy policy is inherently linked to the goal of advancing equality; privacy will still be needed once equality is achieved, to promote autonomy.

Conclusion

Lawmakers can better address discrimination by recognizing that race-neutral laws might affect African Americans or other groups differently. Race-conscious policies that name vulnerable groups could be more effective in addressing bigotry and discrimination. Comprehensive privacy rules that forbid collection of data about race might make matters worse, interfering with public discussion of race or attempts to remedy bias. Fundamental substantive privacy rights with no “opt-out” provision could better protect consumers. Like other civil rights, privacy law could be linked to the goal of advancing equality.

“Fighting Racial Discrimination in Our Digital Lives” with Anita Allen, Danielle Citron and Risa Goluboff
This podcast is available on various listening apps, see show notes on the UVA Common Law episode page.

It is also available for listening on YouTube.
“Fighting Racial Discrimination in Our Digital Lives”

Anita L. Allen is the Henry R. Silverman Professor of Law and Professor of Philosophy. A graduate of Harvard Law School with a PhD from the University of Michigan in Philosophy, Allen is internationally renowned as an expert on philosophical dimensions of privacy and data protection law, ethics, bioethics, legal philosophy, women’s rights, and diversity in higher education. She was Penn’s Vice Provost for Faculty from 2013-2020, and chaired the Provost’s Arts Advisory Council.

Danielle Citron is the Jefferson Scholars Foundation Schenck Distinguished Professor in Law and Caddell and Chapman Professor of Law at UVA, where she writes and teaches about privacy, free expression and civil rights. Her scholarship and advocacy have been recognized nationally and internationally. In 2019, Citron was named a MacArthur Fellow based on her work on cyberstalking and intimate privacy. In 2018, she received the UMD Champion of Excellence award and in 2015, the United Kingdom’s Prospect Magazine named her one of the Top 50 World Thinkers and The Daily Record named her one of the Top 50 Most Influential Marylanders. She serves as the inaugural director of the school’s LawTech Center, which focuses on pressing questions in law and technology.