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The reasonable woman

Law cases frequently turn on interpreting the "reasonable expectation of privacy". At last week's Privacy Law Scholars, Pepperdine professor Victoria Schwartz victoria-schwartz.jpgasked an interesting and seemingly obvious question that apparently is new: how does that reasonable expectation change if you stick "woman" in the middle? As in, "a reasonable woman's expectation of privacy".

Organized by UC Berkeley's Chris Hoofnagle and George Washington University's Daniel Solove, Privacy Law Scholars is more workshop than conference. Lawyers, mostly academics, have fun here by submitting a draft paper, sitting quietly while a peer summarizes and critiques it, and then answering comments and questions from a whole group of peers, who discuss it, tease its ideas apart, and suggest new angles. This year's event featured some 80 papers presented in concurrent tracks over eight sessions; everyone is expected to have read at least the papers whose sessions they will attend.Hoofnagle-Solove.jpgLawyers love it: the thing is growing like Defcon, and October will see the first European offshoot, in Amsterdam r. The overall idea is to improve the quality of privacy law scholarship. Which, you know: good.

As a case study, Schwartz, whose work analyzing and studying court rulings has a long way to go, used drug testing. While the intrusiveness of having to pee under observation is evenly distributed between genders, which is why she chose it, the *informational* privacy implications are different: a woman's urinalysis can show she's pregnant. Or, as in Ferguson v. Charleston, pregnancy can provide the reason for drug tests whose results can be demanded by police (though this case is less uniquely applicable, since men also might have occasion to give a hospital samples for unrelated medical reasons).

Yet this aspect doesn't register in court judgments where drug testing rules have been challenged. In Ferguson, the Supreme Court ruled that handing such tests over to the police constituted an illegal search under the Fourth Amendment. In dissent, however, Justice Antonin Scalia wrote, "No good deed goes unpunished", and argued that turning over the test results to police did not constitute unreasonable search because it was done as part of a larger goal to get these women to seek treatment and protect the health of their fetuses. In another case, National Treasury Employees Union v. Von Raab, which used auditory but not visual monitoring to ensure the integrity of samples. SCOTUS upheld the tests in two of the three categories. Scalia again dissented, calling conducting the urinalysis test while a same-sex monitor "remains close at hand to listen for the normal sounds" "particularly destructive of privacy and offensive to personal dignity." So it's more invasive to be monitored while peeing than to have the results turned over to the authorities? This led to a discussion of the notion that how some judges rule in cases may depend on whether and how they identify with the people in the case.

One of the points made in the discussion was that there are many cases where the law is privacy-invasive but not thought of along those lines, the cited example being mandatory ultrasound laws, put in place to delay or deter women seeking abortions. Other case law has obvious privacy implications: many states have ruled that "upskirt" photographs are protected by the First Amendment, effectively ruling that women's private parts may not be private if she's in public wearing a skirt. Some examples: Massachusetts; Washington, DC; Texas.

A secondary point arrived via a mention of rape apps. It makes me enormously sad that such a thing needs to exist, and especially that young women feel they need these, but apparently they do: these Some of these involve GPS tracking: essentially, the women who use these are trading their privacy for feeling safer. Along those lines, we haven't come as long a way (baby) as one might wish: many, many strictures on women's behavior derived from the notion that they needed to be protected, and many divisions that persist between men and women continue to derive from it. And, as someone pointed out in the session, women historically had no privacy: that's why Virginia Woolf longed for A Room of One's Own.

Although the particular conversation ignited by Schwartz's paper did revolve a great deal around women - there was at least one self-identified feminist from each of the last four decades - the box she's opened is larger than that. As another conference participant said, "Poor people, black people, elderly, disabled..." Anyone, in fact, who is not "neutral", where "neutral" typically means "normal" to whomever is speaking. Understanding how broad an array "normal" covers is hard, and involves being willing to let go of preconceived notions, as this week's please, girls, don't cry moment also showed. There's a good analogy here to accents: I speak unaccented English; you have an accent; he talks funny.

As soon as you add *any* modifier to "reasonable expectation", replacing the generic white, male stick figure in your head with a more specific real person, you have moved "privacy" from the abstract to the personal. This is something privacy advocates struggle with all the time, and it's badly needed, whatever that replacement looks like.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.


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