Scott Skinner-Thompson (New York University School of Law) has posted Performative Privacy (UC Davis Law Review, Forthcoming) on SSRN. Here is the abstract:
Broadly speaking, privacy doctrine suggests that the right to privacy is non-existent once one enters the public realm. Although some scholars contend that privacy ought to exist in public, “public privacy” has been defended largely with reference to other, ancillary values privacy may serve. For instance, public privacy may be necessary to make the freedoms of movement and association meaningful in practice.
This Article identifies a new dimension of public privacy, supplementing extant justifications for the right, by arguing that many demands for privacy while in “public” are properly conceptualized as a form of performative, expressive resistance against an ever-pervasive surveillance society. For example, when a person wears a hoodie in public obscuring their identity, they may be engaged in active, expressive opposition to the surveillance regime — communicating a refusal to be surveilled. The same holds true when a person uses online obfuscation techniques to cloak their cyber activities.
This Article isolates “performative privacy” as a social practice, and explains how this identification of public, performative privacy may provide doctrinal and discursive solutions to some of our most pressing social controversies.
By demonstrating that functional demands for public privacy are often expressive, this Article helps establish that public privacy is grounded in the First Amendment and covered by its robust protections. Discursively, directly linking public privacy performances with the well-ensconced freedom of expression may help shift societal reaction to such privacy demands from suspicion to embrace. Moreover, to the extent that acts of performative privacy cut across conflicts targeting racial, religious, or sexual minorities (regulation of hoodies, head veils, and gender identity are some examples), performative privacy has the potential to provide a more universal and unifying normative response to these conflicts.