A Woman's Right to Not Be in the News.

• Author: Feng, Rhoda
• Position: Danielle Keats Citron's "The Fight for Privacy: Protecting Dignity, Identity and Love in the Digital Age"

Privacy law has traditionally helped powerful men at the expense of vulnerable women. Can it be recast?

The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age

by Danielle Keats Citron

Norton, 304 pp.

The invocation of privacy is often a smokescreen for privacy-annihilating activities. Tech giants exploit consumers' online privacy and civil rights, harvesting our intimate details for profit and imperiling our rights. The only privacy Facebook, Amazon, Google, and the like are interested in safeguarding is their own, pushing back on regulators under the guise of protecting "trade secrets."

For certain powerful men, too, privacy means keeping their misdeeds under wraps. The disgraced film mogul Harvey Weinstein benefited from what The New York Times has called a "protection racket," or a "network of aggressive public relations flacks and lawyers who guard the secrets of those who employ them and keep their misdeeds out of public view." Matt Lauer, who was fired from NBC News in 2017, had a button under his desk that conveniently prevented interruption while he had inappropriate relations with female employees. Women who fight back against assaulters often end up with an out-of-court settlement and a confidentiality agreement: a battening down of secrecy. All this cloak-and-dagger business gives privacy a bad rap--it's a debased currency that licenses men to oppress women, monopolies to oppress consumers, and powerful people to guard their profits at the expense of everyone else.

It didn't have to be this way. The legal concept of the right to privacy has its origin in an 1890 Harvard Law Review article by Louis Brandeis and Samuel Warren, in which the authors called for the legal system to protect the "right to be let alone" in the "sacred precincts of private and domestic life." The article relied on a psychological insight: If information pertaining to an individual's private life is made public, it can damage the person's "estimate of himself." As Brandeis and Warren wrote, individuals and society are harmed when "numerous mechanical devices ... make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.'" (The definition of privacy was personal for Warren, whose brother Ned was openly gay. Journalists have speculated that his authorship of the article was in part motivated by a desire to protect his family from the sensationalism of the penny press.) Scholars have called the article "the foundation of American privacy law" and "one of the most famous law review articles ever written." It gave women in the early 20th century the ability to use tort law to object to their images being used in films and ads without their consent.

How privacy torts morphed from a potentially liberatory tool into an overly narrow set of claims typically used in defense of the powerful--and how we might turn the tide--is part of the story that Danielle Keats Citron, a legal scholar and vice president of the Cyber Civil Rights Initiative, tells in her...