Friday, February 19, 2021
Michele Gilman, Feminism, Privacy and Law in Cyberspace, Oxford Handbook of Feminism and Law in the U.S. (2021 Forthcoming) (Martha Chamallas, Deborah Brake & Verna Williams, eds.)
Feminism has long centered on breaking down the public and private divide that traditionally organized social relations and subordinated women. Privacy is lauded for giving women space for self-determination, but also criticized for creating spaces where patriarchy and misogyny can flourish unchecked. Cyberspace heightens the stakes of this tension because it creates almost limitless access to people’s personal data. We live in a datafied society powered by digital profiling, automated decision-making, and surveillance systems in which we no longer control our personal data; rather, it is used to control us. Women face multiple, gendered harms in cyberspace, including online harassment, digital discrimination, and sexual surveillance by the “femtech” industry. Yet the United States lacks comprehensive privacy laws, and its analog-era anti-discrimination statutes are no match for the digital world. American privacy protections hinge upon a notice and consent regime that puts the onus on users to protect their privacy, rather than the entities that benefit from gathering individual’s personal data. This chapter presents an overview of the oppression women and other marginalized people suffer through a loss of privacy in the digital age and the efforts that activists have taken to ameliorate the harms of cyberspace and to shape privacy norms in a feminist and inclusive manner. It describes the meaning of privacy through four waves of feminist theorizing and activism, analyzes how American privacy law responds to major gender equity challenges in cyberspace, and highlights current feminist theories and models of resistance.