Privacy Nicks: How the Law Normalizes Surveillance, Woodrow Hartzog, Professor, Boston University School of Law

Feb. 7, 2023
12:10PM - 1:30PM
SLB Room 128
Open to the YLS Community Only

Lawmakers are passing increasingly robust privacy rules and judges are issuing opinions that limit surveillance practices more than ever before. Yet even when lawmakers and judges act to mitigate surveillance harms, they end up normalizing being watched. Privacy law helps acclimate people to surveillance by ignoring smaller, more frequent, and more mundane privacy diminutions. We call these reductions “privacy nicks,” like the proverbial “thousand cuts” that lead to death. Privacy nicks come from the proliferation of cameras and biometric sensors on doorbells, glasses, and watches, and the drift of surveillance and data analytics into new areas of our lives like travel, exercise, and social gatherings. Invasive practices become routine through repeated exposures that acclimate them to being vulnerable and watched in increasingly intimate ways. With acclimation comes resignation, and this shift in attitude biases how citizens and lawmakers view reasonable measures and fair tradeoffs. Because the law looks to norms and people’s expectations to set thresholds for what counts as a privacy violation, the normalization of these nicks results in a constant re-negotiation of privacy standards to society’s disadvantage. The result is that the legal and social threshold for rejecting invasive new practices keeps getting redrawn, excusing ever more aggressive intrusions. In short, privacy law permits whatever people can be conditioned to tolerate. We are on track to tolerate everything.

Woodrow Hartzog is a Professor of Law and Class of 1960 Scholar at Boston University School of Law. He is also a Faculty Associate at the Berkman Klein Center for Internet & Society at Harvard University, a Non-resident Fellow at The Cordell Institute for Policy in Medicine & Law at Washington University, and an Affiliate Scholar at the Center for Internet and Society at Stanford Law School. He is the author of Privacy’s Blueprint: The Battle to Control the Design of New Technologies, published in 2018 by Harvard University Press, and the co-author of Breached! Why Data Security Law Fails and How to Improve It, published in 2022 by Oxford University Press.

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