'Disembodied Data And Corporeal Violation: Our Gendered Privacy Law Priorities And Preoccupations' by Jessica Lake in (2019) 42(1)
UNSW Law Journal 119 comments
Whether one is more (or less) concerned with issues of image rights or the use of online tracking mechanisms by retailers, the role of CCTV in city streets, the ability to access a safe abortion, the media’s publication of salacious stories, the ability of government agencies to collect personal information, or the abuse and harassment of individuals in the home or online is likely to be influenced by social and historical experience. In this article I argue that such experience and consequent investments in ‘privacy’ are also gendered and should be recognised as such by legal scholars of privacy, legislators and courts. Privacy law relates inextricably to the self and calls into question how we (as individuals and groups) envision, articulate and perform our sense of self. It marks out boundaries between persons and perceived sources of power and oppression. This article examines three periods of heated privacy law debate (mid 19th century, turn of 20th century and 1960s/70s) and demonstrates that whereas men’s privacy priorities primarily focused on controlling and concealing information about themselves; women’s privacy issues mostly centred on protecting against violations of themselves. Masculine privacy focuses on the ways in which disembodied or abstract data – guarded by or as forms of property – poses challenges to professional and public reputations. Feminine constructions of privacy are preoccupied with invasions of the autonomy and dignity of embodied selves. In order to further develop privacy law in Australia, we must first recognize that gender fundamentally influences our paradigms and priorities of privacy protection – as seen in pressing debates about online consumer data protection and ‘revenge pornography’.
Lake argues
Whether one is more (or less) concerned with issues of image rights or the use of online tracking mechanisms by retailers, the role of CCTV in city streets, the ability to access a safe abortion, the media’s publication of salacious stories, the ability of government agencies to collect personal information, or the abuse and harassment of individuals in the home or online is likely to be influenced by social and historical experience. In this article I argue that such experience and consequent investments in ‘privacy’ are also gendered and should be recognised as such by legal scholars of privacy, legislators and courts.
Since the mid 19th century (when ‘privacy’ was first articulated as a legal value) women have primarily advanced privacy interests and cases that are corporeal in nature – involving invasions of their bodies – whereas men’s privacy priorities have predominantly focused on information – demanding its concealment from, or control by, the state, the press, the police, and policy makers. Repeated surveys and case law suggest that men today still care more about corporate and government surveillance than do women, while women are more concerned about being stalked, harassed and violated by other people. Yet, in Australia, despite numerous attempts at law reform, ‘privacy law’ only protects our information, not against incursions or invasions of personal integrity. This article examines the historical and contemporary gendered patterns within Anglo-American privacy jurisprudence and calls attention to the consequences. In recent decades, the seeming neutrality of information privacy law, a field of increasing interest to scholars and legislative reformers, has worked to obscure or negate the fundamental role of gender in privacy law’s development and its current challenges.
Privacy law relates inextricably to the self and calls into question how we (as individuals and groups) envision and articulate our subjective sense of self. It marks out boundaries between persons and perceived sources of power and oppression. Legal and political debates about ‘privacy’ reflect fundamental battles over the ways in which people identify and address others – negotiations over the cultural representation and performance of our sexed, gendered and racialised bodies. They reveal the preoccupations and priorities at play within historically situated narratives and mythologies that still resonate.
As a particularly slippery and fluid concept, ‘privacy’ can be readily invoked in a wide variety of contexts. It is therefore imperative to understand and identify the exact circumstances in which it is employed – and in whose interest. Privacy can only masquerade as a neutral and coherent concept on the page of a law review. Within law’s practical applications, its use and abuse are specific, and reflect historically complex and intersecting interests of gender, race and class. In this article, I build upon my earlier study of the women who forged a right to privacy in the United States, The Face that Launched a Thousand Lawsuits, to make a different argument concerning the gendered patterns in privacy law during three important time periods: the mid-late 19th century, the turn of the last century and the 1960s and 70s. These points in time represent key moments in privacy law’s development – when widespread social debates crystallised in landmark precedents or new pieces of legislation. These are periods that witnessed particular anxieties about changing gender identities and expectations. Legal discourses about ‘privacy’ spoke to uncertainties about the ways in which men and women were being redrawn in (and into) public space. I show that whereas men’s privacy priorities have primarily focused on controlling and concealing information about themselves, women’s privacy issues have mostly centred on protecting against violations of themselves. Masculine privacy concerns have focused on ways in which disembodied or abstract data – guarded by, or as, forms of property – posed challenges to their professional and public standing. Feminine constructions of privacy have been preoccupied with invasions of the autonomy and dignity of their embodied selves. Norms and discourses on gender continue to reflect and influence our paradigms of privacy protection – as seen in Australia where there has been considerable development of information privacy law compared to the relative lack of civil laws to protect against revenge pornography or other serious invasions of privacy.
This article thus opens up new ground in the scholarship on gender and privacy law. Previous work focused on the late 19th century has argued that common law privacy rights imposed duties of modesty on women (in line with traditional ideals of femininity) rather than conferring positive rights to decisional privacy or autonomy. Other scholars have shown how the quasi-proprietary nature of common law privacy rights facilitated the careers of women in the entertainment industries. Feminist legal philosophers have debated the value of ‘privacy’ when the public/private dichotomy, so entrenched in Western law and philosophy, has worked and still works to relegate and devalue women’s labour and attributes traditionally associated with femininity.
Constitutional analyses of the establishment of privacy rights in 1960s and 70s in the United States pointed to the limits of framing women’s battles for reproductive liberties via the language of privacy; while others have sought to demonstrate the multifaceted nature of privacy that is at stake in decisions to terminate pregnancies. Some scholars have analysed the intersections of race and gender in privacy’s history, to argue that whereas white women symbolised privacy (but could not access it), black women’s historical commodification positioned them as incapable of possessing it. More recently, a number of scholars have demonstrated that privacy rights are better understood as a class privilege and that poor women experience especially intrusive practices of surveillance – such as unscheduled home visits, interrogations over intimate relationships, drug testing, strip searching, and audio/visual monitoring – that are either enabled, overlooked or inadequately addressed by current legal regimes. Little, if any scholarship, however, has examined the complex relationship between masculinity and privacy, nor attempted to link present privacy debates about the regulation of data with historically gendered patterns of privacy articulation and protection. Yet we should recognise that privacy law has not become post-gender in its priorities and preoccupations, despite the seeming gender neutrality of data protection laws.
This article focuses on historical patterns of privacy debate and protection, particularly within the United States (‘US’), to demonstrate their relevance and significance for Australia today. Amongst common law countries, privacy law is an area pioneered and cultivated by American precedent. Discussions of privacy within the law began in both the US and the United Kingdom in the mid 19th century, but only in various US states did it quickly evolve into a distinct statutory cause of action and a tort. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, the High Court’s most detailed consideration of whether Australia should recognise a tortious right to privacy, Justices Gummow and Hayne described the US as the ‘fount of privacy jurisprudence’. Each opinion of the bench referred to the common law and constitutional manifestations of privacy law in the United States. For example, on the issue of whether a corporation should have a right to privacy, Justices Gummow and Hayne stated: ‘the common law in Australia upon corporate privacy should not depart from the course which has been worked out over a century in the United States’.
When it came to considering a future right to privacy in Australia and the ways in which current information privacy regulation is exercised, the High Court recognised that the origin story and preponderance of precedent for privacy within the law is American. This is also evident in the influence of American privacy law scholarship on the legislation of common law countries, as well as within our own law reform proposals. In 1960, William Prosser, wrote a soon to be famous article that reviewed 80 years of privacy jurisprudence and delineated hundreds of cases into four neat categories. These categories formed the basis of torts within the US, as well as statutory actions in Canada and New Zealand. They also influenced discussions of new statutory laws at state and federal level in Australia. Our ideas of privacy, its paradigm of legislative protection and future projections germinated in American soil. Any in-depth examination of gendered patterns within our own privacy laws must engage with over a century of American code, case law, ideas and precedent.
This article examines three periods of heated privacy debate within the law. Part II focuses on the mid to late 19th century, when privacy was still grounded in the bricks and mortar of the family home. The legal maxim ‘a man’s home is his castle ’ guarded (white, middle-class) men from the invasions of outsiders; while women, children, servants and slaves were ‘protected’ as, and within, this privileged regime of private property. Law’s reinforcement of fences and walls effectively controlled the flow of personal information about and interference with the home’s residents, whilst leaving the corporeal boundaries of women and children legally permeable.
Part III of the article traces the shift to technologically driven fears about ‘the press’ and snapshot photography, with public men (such as editor Edwin Godkin) employing ‘privacy’ to advocate for the protection of one’s reputation from prurient gossip and the publication of personal information. At the same time, women began to use ‘privacy’ to contest the use and abuse of photographic images of their faces and bodies. These cases resulted in the establishment of the first right to privacy in the common law world.
In Part IV, I move on to the 1960s and 70s and the establishment of a constitutional right to privacy in the United States in relation to women’s reproductive lives. The decision of Roe v Wade established a right to privacy that legally sanctioned the attachment between a woman’s autonomous mind and her uterus, freeing her from forced childbirth. Here I suggest, however, that this constitutional right to privacy should be read in parallel with the contemporaneous work of legal academics such as Alan Westin and Arthur R Miller, who were pressing the dystopian privacy perils posed by databanks and computers, and nurturing fears about the collection, storage, use and dissemination of information by government agencies. Heightened fears about ‘databanks’ during this time resulted in the passing of the US Privacy Act of 1974, and some years later, the Privacy Act 1988 (Cth) in Australia.
In conclusion, I reflect on these patterns in light of present day debates about non-consensual pornography and online privacy. I suggest that men – as consumers, citizens and scholars – are concerned more by the collection of information about them by corporations and governments and construct this as the major threat to ‘privacy’. This masculinist construction of privacy has come to dominate legislative agendas and scholarly attention in recent decades, eliding other fundamental forms of privacy invasion.
