Feminism, Privacy, and Law in Cyberspace

Abstract

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 it is 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 decisionmaking, 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 antidiscrimination 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. Women and other marginalized people have suffered through a loss of privacy in the digital age, but activists have made efforts to ameliorate the harms of cyberspace and to shape privacy norms in a feminist and inclusive manner. It is important to understand the meaning of privacy through four waves of feminist theorizing and activism, to analyze how American privacy law responds to major gender equity challenges in cyberspace, and to examine current feminist theories and models of resistance.