Privacy, Masks, and Religion

Omer Tene is blogging over on Concurring Opinions. He has an entry that caught my eye in light of a recent item about wearing pixellated masks in public to protect privacy. Omer writes, in part:

Absent legal protection, individuals may embrace privacy enhancing technologies (PETs). One such (admittedly low-tech) PET is a mask. In a world with ubiquitous facial recognition, more and more people are likely to wear masks. After all, if a face is like an http cookie, a mask is like a “do not track” (DNT) header.

You might think that mask wearing in public will create a “market for lemons” – only the bad seeds will wear the masks; after all – the rest of us have “nothing to hide”. Yet as Dan Solove has shown, we need not have “something to hide” in order to care for our privacy. Privacy, solitude, freedom from an “unwanted gaze” – reflect a natural human need; it’s not even strictly human – as cat owners know, animals sometimes need privacy too.

This only complicates matters, since it means that the bad seeds will be able to blend into the mask-wearing crowd. Policymakers may respond by legislating anti-mask laws. They would reason that wearing masks in public is different than delivering a DNT signal online. A mask-bearing individual may intimidate passersby. (Although this is surely related to existing social norms and might change as masks become more common). Masks reduce accountability; but then again, so does online anonymity.

Anti-mask laws, in turn, may prove to be problematic given their infringement on religious freedom of, for example, Muslim women. Perhaps an exemption should be crafted for such purposes then. But who is to say that privacy is not a legitimate religion? In fact, I have argued elsewhere that privacy discourse today often takes on a religious zeal.

We have already seen anti-mask laws in this country as well as elsewhere. As Joe Coscarelli of the New York Times reported in September 2011, at least five people had been cited for violating a New York law that bans masks at gatherings of two or more people unless it’s “a masquerade party or like entertainment.” A participant in Occupy Lansing (Michigan) was also reportedly arrested for wearing a mask.

I would argue that the right to wear a mask flows from the right to anonymous speech, and if all people are doing are exercising their right to peacefully assemble and make their point, anti-mask laws should fall to the First Amendment. But would that argument prevail? In 2004, the 2nd U.S. Circuit Court of Appeal ruled that New York’s law barring demonstrations from wearing masks is constitutional and didn’t violate the free speech rights of Ku Klux Klan members. Significantly, though, the appellate panel concluded that the mask wasn’t protected by the First Amendment because the mask doesn’t convey any message independent of the robe and hood. But if the Guy Fawkes mask is the only “costume,” and the message is “I am a member of Anonymous,” would it be protected? Or what if the message is “I object to the surveillance state we’re becoming?” Would that make a mask protected speech?

I’d love to hear some First Amendment experts respond to Omer’s thoughts or this blog entry. I don’t think arguing that privacy is a religion will gain any traction, but I do think that to the extent anti-mask laws infringe on the religious beliefs of some (such as bans on burqas or naqibs), the laws should be struck down. I doubt they will be because of anti-Muslim sentiment and because of the foolish “security trumps privacy” mentality, but in my opinion, they should be struck down.