This article is part of the 2023 BCLT-BTLJ Symposium.
By Jacob Snow1
Privacy law under Article I, Section 1 of the California Constitution is based on a foundational distinction between “informational” and “autonomy” privacy. Invasions that implicate autonomy are limited, primarily focusing on protecting people’s bodily autonomy and intimate life decisions from direct coercion. But autonomy intrusions are also more protected; the government or private party must justify autonomy harms with a “compelling interest,” akin to strict scrutiny under federal law. So called “informational” privacy harms, by comparison, are subject only to overall balancing, where the intruding party must show that the intrusion is more beneficial than not.
The autonomy/informational privacy distinction is a poor fit for a society that is mediated by technology. Many so-called “informational” privacy violations are in fact ruinous to people’s lived ability to exercise bodily, intellectual, democratic, and financial autonomy. The collection, sharing, and use of personal information can cause people to be incarcerated, to suffer bodily injury, to lose their homes or their jobs, and to be blocked from accessing new jobs, homes, and credit. Misuse of personal information can expose people to hacking, scams, higher prices, lower quality goods, state violence, intimate-partner violence, intimidation, and deportation. These harms limit people’s ability to live their lives with autonomy, safety, and dignity. If these autonomy interests are to be protected, the reach of “autonomy” privacy under the California Constitution must expand beyond its current narrow focus.
II. Hill v. NCAA and the Autonomy/Informational Privacy Distinction
Caselaw under Article I, Section 1 has two epochs: cases before Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1 (1994) and cases after. Before Hill, the law required that a plaintiff demonstrate that an invasion of privacy had taken place, and with that showing made, the burden shifted to the defendant to justify the invasion with a “compelling interest.”2
Twenty years later, Hill held that a plaintiff alleging a privacy invasion under Article 1, Section 1 must demonstrate three elements of a cause of action: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) conduct by the defendant constituting a serious invasion of privacy.3 Once a plaintiff has satisfied the first three elements, the defendant can argue, as an affirmative defense, that the invasion of privacy is justified because it substantially furthers one or more countervailing interests.4
What threshold those countervailing interests must meet depends on the nature of the privacy interest. As Hill tells it, “[l]egally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’).”5 When the challenged privacy invasion implicates autonomy privacy, a “compelling interest” must be present to overcome the vital privacy interest.6 In other cases, a “general balancing” of interests is applied to determine whether the constitutional right to privacy has been violated.7
Hill, as well as later cases, concede that the distinction between autonomy and informational privacy interests is “not sharply drawn” because “disclosure of information . . . may have an impact on personal decisions and relationships.”8
The problem with the distinction between informational and autonomy privacy is, this article contends, more profound than merely a line that is not sharply drawn. Rather, the problem is that the distinction itself elides the deep connection between surveillance, power, and autonomy; and in particular how people, merely by participating in modern life, are faced with numerous barriers to the exercise of their autonomy. Some of those barriers are visible, if faint. Others cannot be seen at all. In the following section, drawing on the work of writers, journalists, activists, scholars, organizers, and other thinkers, I sketch some of the ways that the collection, sharing, and use of information puts people’s autonomy at risk.
III. How Information Sharing Imperils Autonomy
Surveillance is an exercise of power and a mechanism of control. And the ability to resist that power—by controlling the collection and dissemination of information—is a core purpose of privacy protections, both in theory and practice.9 This section surveys the landscape of harm, providing a snapshot of three categories of autonomy threatened by the profusion of surveillance technology: bodily, financial, and intellectual autonomy.
Bodily autonomy. The proliferation of surveillance technology threatens people’s fundamental autonomy interest in controlling their bodies. People seeking and obtaining reproductive health care, including abortions, cannot freely do so when their smartphones, their browsing history, and their private messages may betray them.10 People engaging in, to use Hill’s phrase, “personal activities” cannot do so “without observation” in almost any area of their lives. Personal activities like riding a bike at night,11 driving down the street,12 and communicating with friends and acquaintances13 are often observed and tracked, first by private companies and then accessed by the government.14 Surveillance technology built on massive datasets also puts particular communities at risk when the technology repeats and reinforces the bias in the physical world.15 These numerous private databases represent opportunities for law enforcement to unearth the intimate details of a person’s life and use them as part of a prosecution. Detention by law enforcement—through a stop on the street, arrest, or incarceration—places a potentially disastrous limit on a person’s autonomy.
Financial autonomy. One purpose of the modern targeted-advertising economy is to get people to buy stuff.16 With more information about people (so the story goes) advertising can be delivered to people who are interested in the products advertised.17 That story, however, is only sometimes accurate, and targeted advertising overall seems unlikely to be more beneficial to people than not.18 And even if the advertisement is appealing to the recipient, the products advertised are more likely to be lower quality and higher priced.19 But at least low-quality, overly expensive products are actual products; targeted ads also enable outright scammers to proliferate, financially harming people and benefitting the companies that delivered the ads.20 The financial harm can also operate in reverse: by depriving people of advertisements that might benefit them (e.g., for housing or employment) because of their membership in protected categories.21 Harms like these threaten people’s autonomy by putting people at risk of financial ruin, potentially depriving them of jobs, housing, and credit, and wasting their money.
Intellectual autonomy. As Justice Marshall wrote in Stanley v. Georgia, the “State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”22 An “individual’s right to read or observe what [they] please,” Justice Marshall continued, is “fundamental to our scheme of individual liberty.”23 The ballot pamphlet for the 1972 election—in which the voters added the privacy amendment—strikes a similar note, while emphasizing that private surveillance poses similar risks. The pamphlet stated that privacy “protects our homes, our families, thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose.”24 This right to private thoughts, emotions, and personalities, which Neil Richards calls “intellectual privacy,” is necessary in part to enable people to generate their own beliefs.25 As Richards puts it, “why else would we want people to think for themselves or develop their individuality if not to generate new ideas and new forms of identity and expression?”26 When companies monitor every time we search the web,27 our television or movie watching by the second,28 and associations with family in the home,29 that surveillance impacts people’s autonomy.
Privacy under Article I, Section 1 of the California Constitution must take seriously the modern threats to people’s lived ability to live full lives with autonomy and dignity. When autonomy harms are present, California law dictates that a compelling justification must be present. As courts adapt to a changing privacy landscape and a world in which surveillance diminishes people’s autonomy, they should demand that companies and governments present compelling countervailing interests to justify the intrusion.