FOUR PRIVACY STORIES AND TWO HARD CASES.

• Author: Silbey, Jessica

PRIVACY AT THE MARGINS. Scott Skinner-Thompson. (*) New York, N.Y.: Cambridge University Press. 2021. Pp. ix + 220. $99.99 (Hardcover), $32.99 (Paperback).

Scott Skinner-Thompson's new book, Privacy at the Margins, is what I would call a "fourth-generation" study of privacy law. Privacy's contours and justifications have been debated over the course of the twentieth century, first to establish it as a matter deserving legal protection (roughly the first half of the twentieth century), (2) then to iterate its various common law and constitutional variations (starting in the 1960s), (3) and since the computer and internet revolution of the 1990s, to reevaluate privacy's growing importance but waning presence in the digitally-networked age. (4) The third-generation of privacy scholarship has been a fast-growing area in the past two decades, combining the study of tort-based privacy scholarship with information and data privacy concerns endemic in the internet age. And it set the stage for a fourth-generation of privacy scholarship, which considers the intersection of privacy law and equality along the dimensions of gender, race, sexual orientation, and economic class. (5)

As an example of third-generation privacy scholarship on which Scott-Skinner Thompson's book builds, consider the recently published Why Privacy Matters, by Neil Richards. Richards begins his new book with the sentence "Privacy is dead." (6) This is a set-up, because, as the book's title indicates, Richards argues forcefully that privacy matters a lot. Privacy promotes identity formation, intellectual freedom and democracy, and it protects us as consumers and employees in the lopsided "power asymmetries caused by the industrial econom[ies]" of the twentieth and twenty-first centuries. (7) Despite starting the book with a false prophecy, Richards gets to the truth and the brunt of his argument when he writes in the first sentence of Part 1 ("How to Think About Privacy") that "Privacy is everywhere you look." (8) Richards, a leading scholar in privacy law and regulation, demonstrates in this set-up and straight-forward reveal the conflicting and complex narratives of privacy in contemporary culture that make it both a ubiquitous and contentious subject of study and conversation.

Despite predating Richards' book by several months, Skinner-Thompson's Privacy at the Margins is a next step in privacy law and policy. Skinner-Thompson is part of a growing cadre of privacy law scholars focusing on the intersection of privacy and inequality, especially regarding the unequal treatment of marginalized communities. His book addresses the disparate needs and effects of privacy regulation for racial minorities, queer communities, women, people who are economically disadvantaged, and religious minorities (pp. 17-44). Privacy at the Margins directly follows and develops the arguments made by Khiara Bridges and Danielle Citron, among others, whom Skinner-Thompson liberally cites for their identification of the problem that the law's failure to protect privacy for the most vulnerable exacerbates their powerlessness and marginalization. Privacy invasions for these communities are more common (think policing and surveillance) and also more devastating, because it is less easily remediable and often has more profound, material consequences. As Mary Ann Franks observes (as quoted in Skinner-Thompson's opening pages), "[t]he surveillance of marginalized populations has a long and troubling history. Race, class, and gender have all helped determine who is watched in society, and the right to privacy has been unequally distributed according to the same factors" (p. 16). (9)

Skinner-Thompson's focus on privacy at the margins is to find a doctrinal path through what is essentially inhospitable legal precedent to a more robust form of privacy for marginalized people and communities. The book's arguments are grounded largely in case analysis and doctrinal narrative; he aims to tell coherent stories about sets of cases which, if pursued by lawyers or judges, would lead to more just outcomes for litigants. And by "just" Skinner-Thompson explicitly means equal justice, that is, marginalized communities would no longer be the "have nots" in the famous description of the court system in which the "haves [always] come out ahead." (10) Notably, this is not a book about policy (which laws should be passed), although it does articulate the virtuous reasons for pursuing certain judicial outcomes, such as enhancing democracy and reducing the precarity of marginalized individuals' lives. Instead, Privacy at the Margins provides doctrinal tools and road maps to reach those outcomes, which may be useful to both lawyers and legal decisionmakers when faced with the growing number and range of privacy complaints.

One of the ways Skinner-Thompson deftly makes his arguments for doctrinal change is by reconfiguring existing accounts of privacy into new narratives, or emphasizing old stories in these new contexts to highlight their special relevance for marginalized communities. As many have explained, it is the force of the story that convinces a judge or jury about the truth of the facts; doctrine may provide guardrails for the range of possible stories, but compelling narratives win cases. (11) And what Privacy at the Margins accomplishes is to concretize several privacy stories that, while not necessarily new at their most basic, deserve the detailed substantiation that Skinner-Thompson provides in his book, because of the effect of privacy (or its lack) at the margins of society. These stories especially need substantiation and retelling in the digital age when what privacy means and, in Neil Richards' phrasing, "why privacy matters" is all the more urgent. Our internet-networked realities have added new dimensions to our conversations and debates about privacy, and Privacy at the Margins incorporates the digital age affordances into its analyses not as an extra feature but as an inevitable fact of everyday life, which it is.

Below, I discuss both the doctrinal pathways Skinner-Thompson suggests should be followed, which I found intriguing but not entirely convincing, and the innovations in what I'm calling privacy narratives, which I think deserve emphasis for their forceful clarity and recontextualization. Sometimes, the best scholarship helps readers understand familiar situations in new ways or reiterates a familiar account in a clearer, more emphatic form. Doing so importantly contributes to the conversations about complicated issues and, by my reading, that is where Skinner-Thompson's book makes a significant impact. Part 1 of this Review describes these privacy narratives in more detail.

Part 2 of this Review takes issue with some of Skinner-Thompson's caveats in his doctrinal arguments, which I describe in Part 1. My critical engagement is not necessarily a disagreement with the need for the outcomes he describes--we seem to share sympathies for the same causes and litigants. My critique is rooted largely in my own cynicism (some might say realism) regarding the Supreme Court's constitutional rights jurisprudence, which I interpret to be rarely freedom- or equality-enhancing for the most vulnerable people and communities, who arguably most need the Constitution's protection. (12) In Part 2, I draw on two cases to illustrate my critique, one Skinner-Thompson discusses in his book (Foster v. Svenson (pp. 136-37)), and one he does not (Lanier v. Harvard College, which was recently decided by the Massachusetts Supreme Judicial Court). (13) These cases illustrate for me some of the trenchant difficulties within constitutional privacy's doctrinal landscape, and I don't think Skinner-Thompson's proposed framework helps us through the thicket. What his framework does accomplish for readers is admirable, however, which is to ask the very hard question about which values matter in the inevitable balance that encompasses privacy regulation. And this is the subject of the conclusion to this Essay.

The conclusion briefly takes up Skinner-Thompson's implicit challenge to choose certain values over others, by making the values at stake explicit (e.g., lived equality and anti-subordination over the public preservation or revelation of truthful facts). Doing so doesn't resolve their often-conflicting coexistence. But hopefully, by surfacing more of the value balancing and sorting in which Privacy at the Margin engages, this Review can enhance Skinner-Thompson's project, which is as much about privacy as it is about equality, because it asserts their interdependence. The goal then, for both Privacy at the Margins and this Review, is to join the chorus of other scholars who seek to raise awareness of the implications of privacy law and policy decisions on some of society's other fundamental values, as experienced by both individuals and institutions for whom privacy law matters (which is to say, for everyone).

PART I

Skinner-Thompson presents four privacy narratives that deserve the detailed treatment he provides. This is especially so because, in recounting these privacy stories in the context of their application to marginalized communities, he demonstrates how privacy law as currently constituted disadvantages these communities and exacerbates their vulnerability.

1. PRIVACY IN PUBLIC IS REAL

   Privacy at the Margins explains how a person can demand or assume the existence of privacy in public. This may seem at first like an oxymoron, but much of the rest of the book depends on readers understanding that in fact "privacy in public" is a long-standing expectation in our society, despite the law's uneasy protection of it. We expect that "upskirting" (taking photos surreptitiously underneath a person's skirt who is nonetheless in public) should be a violation of privacy, but courts have held otherwise (p. 41). And we expect that intimate photos sent between lovers but then disseminated...