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ONLINE PRIVACY ANTI-RACISM
ANITA L. ALLEN Henry R. Silverman Professor of Law and Professor of Philosophy
In “Dismantling the ‘Black Opticon’: Privacy, Race Equity, and Online Data-Protection Reform,” published in the Yale Law Journal Forum, Allen introduces a critical analysis of the particularized vulnerabilities African Americans experience through online surveillance, exclusion, and exploitation. Allen terms this intersecting pattern “the Black Opticon.”
In her African American Online Equity Agenda (AAOEA), Allen set sets forth a “specific set of policymaking imperatives . . . to inform legal and institutional initiatives toward ending African Americans’ heightened vulnerability to a discriminatory digital society violative of privacy, social equality, and civil rights” and uses this framework to analyze three potential legislative solutions. Ultimately, her work delineates the urgent need for explicitly antiracist data protection policies that better serve African Americans.
African Americans Disparate Online Vulnerability
African Americans face disparate online vulnerability in three distinct categories: discriminatory oversurveillance, discriminatory exclusion, and discriminatory predation.
Allen examines how location-analytics software exposes African Americans to disproportionate risks of privacy invasion. In 2016, several major online platforms faced harsh criticism for providing user data to Geofeedia, a software company that used social media posts and facial-recognition technology to analyze and collect a history of individuals’ locations, which it then marketed to law enforcement. After African American Freddie Gray was killed while in police custody, police in the majority-Black community of Sandtown-Winchester used data purchased from Geofeedia to find and arrest individuals who participated in ensuing Black Lives Matter protests.
“Location tracking, the related use of facial-recognition tools, and targeted surveillance of groups and protestors exercising their fundamental rights and freedoms are paramount data-privacy practices disproportionally impacting African Americans,” Allen writes.
Discriminatory exclusion involves “targeting Black people for exclusion from beneficial opportunities on the basis of race” by collecting information that, when analyzed, identifies a person as African American.
When Dr. LaTanya Sweeney, an African American Harvard professor and former Chief Technology Officer at the Federal Trade Commission (FTC), searched “LaTanya Sweeney,” Google returned an advertisement for InstaCheckmate.com that read “LaTanya Sweeney Arrested?” Sweeney contrasted this with her search for the more ethnically ambiguous “Tanya Smith,” which did not return the same arrest advertisement. From this, Allen writes that “biased machine learning can lead search engines to presume that names that ‘sound Black’ belong to those whom others should suspect and pay to investigate.”
In addition to identifying users as African American, online platforms have leveraged this information to systematically exclude African Americans from viewing certain advertisements. These discriminatory practices prevent African Americans from participating in vital sectors of the market, including but certainly not limited to education, employment, housing, and loan procurement.
On the other side of discriminatory exclusion is discriminatory predation, or the targeted advertisement to African Americans of products meant to “induce purchases and contracts through con jobs, scams, lies, and trickery.”
“Discriminatory predation makes consumer goods such as automobiles and for-profit education available, but at excessively high costs,” Allen writes. “Predation includes selling and marketing products that do not work, extending payday loans with exploitative terms, selling products such as magazines that are never delivered, and presenting illusory money-making schemes to populations desperate for ways to earn a better living.”
An African American Online Equity Agenda
Allen employs her AAOEA to evaluate whether a new state law in Virginia, new privacy protection resources of the (FTC), or a proposed new federal privacy agency would adequately serve the online privacy interests of African Americans.
Though some activists have been successful in calling for industry-led self-governance, data privacy is embodied within several legal regimes, including data-privacy, antitrust, intellectual property, constitutional, civil rights, and human rights.
“At this critical time of exploding technology and racial conflict,” Allen writes, “I believe that policy making should be explicitly antiracist.”
The AAOEA centers on five points of guidance for anti-racist law and policy making, which Allen unpacks in turn:
• Racial inequality nonexacerbation
• Racial impact neutrality
• Race-based discriminatory oversurveillance elimination
• Race-based discriminatory exclusion reduction
• Race-based discriminatory fraud, deceit, and exploitation reduction
Assessing Enacted State Law: Virginia Consumer Data Protection Act (2021)
While the Virginia Consumer Data Protection Act (2021) (VCDP) includes antidiscrimination provisions, it fails to “explicitly reference the interests of African Americans or antiracism as a legislative goal” and relies on insecure enforcement mechanisms.
Significantly, the law excludes massive sectors that crucially affect the day-to-day lives of African Americans. As Allen writes, “[t]he rationale for exempting all nonprofits regardless of size — as well as commonwealth governmental entities, including the police, jails, and prisons — is unclear,” though likely relates to the desire to make the unanimously-passed legislation “uncontentious.” Additionally, the law does not protect photographs and related data from being used by Virginia law enforcement, which is of particular concern to African Americans, who tend to be disproportionately impacted by the criminal justice system.
Moreover, though the law prohibits collecting personal data in violation of antidiscrimination laws, it is unclear that these measures will have a pragmatic effect in protecting African Americans’ data. Notedly, the VCDP permits targeted advertising so long as consumers have the right to “opt out.” Allen argues that placing the onus of “opting out” on the consumer is problematic, as it relies on the assumption that consumers are aware they may be being targeted based on their data — and possibly their race. Lastly, any enforcement of the VCDP falls at the discretion of the State Attorney General, with no right of private action, thus effectively subjecting the law to political bias and fluctuation.
New Resources for the Federal Trade Commission
Three factors may signal advancement in the FTC’s historically sparse track record of pursing enforcement actions related to online discrimination: continued diverse leadership, funding for a privacy bureau, and an express commitment to addressing problems faced by communities of color.
In 2021, President Joe Biden appointed Alvaro Bedoya, an immigrant from Peru and naturalized U.S. citizen, to serve as the Commissioner of the FTC. Thus far, Bedoya “has demonstrated an understanding of the problem of racial-minority-targeting surveillance.” Further, the U.S. House Committee on Energy and Commerce recently voted to create and operate a bureau within the FTC dedicated to fighting unfair practices and enforcing Congressional laws related to privacy, data security, and related matters. This proposal could potentially bolster existing race conscious antidiscrimination practices.
A Proposed Federal Data-Protection Agency
The Data Protection Act (DPA) of 2021 introduced by Senators Kirsten Gillibrand and Sherrod Smith in June of 2021 is “striking for its deep responsiveness to calls for equitable platform privacy governance.”
Among its components, the bill would create an autonomous Federal Data Protection Agency (FDPA) that would engage in policymaking, research, law enforcement, and protection against discrimination. The FDPA would include a Civil Rights Office to “regulate high-risk data practices and the collection, processing, and sharing of personal data,” which Allen notes fits squarely into the aims of the AAOEA.
Though the DPA is “not likely to move through Congress soon or intact,” the bill sets a “high bar for future legislative-reform proposals” and “signals a new era, laying out a dynamic framework for an agency with unprecedented authority to pursue equity in the context of data protection.”
In conclusion, according to Allen, without updated governance to reflect recent decades’ profound advances in technology, online platforms can reproduce racist social structures through their design –thereby amplifying discrimination, hate, and white supremacy.
“[T]he Black Opticon is a useful, novel rubric for characterizing the several ways African Americans and their data are subject to pernicious forms of discriminatory attention by racializing technology online,” Allen writes. “These reform agendas have a grave purpose, as grave as the purposes that motivated the twentieth-century civilrights movements.”
