Allen, Anita and Muhawe, Christopher, “Is Privacy Really a Civil Right?” (2025). Articles. 541.
https://scholarship.law.upenn.edu/faculty_articles/541
https://doi.org/10.15779/Z38KK94D6R
Abstract
Sixty years ago, President Lyndon Johnson signed the Civil Rights Act of 1964. Civil rights laws aimed at curbing discrimination and inequality in federal programs, public accommodations, housing, employment, education, voting and lending faced opposition before the Act and continue to do so today. Nevertheless, a swell of legal scholars, policy analysts and advocacy groups in the United States now assert with favor a vital connection between privacy and civil rights. Historically, civil rights legislation was enacted to combat group-based discrimination, a problem exacerbated by contemporary approaches to personal data collection, artificial intelligence, algorithmic analytics and surveillance. Whether privacy is a civil right, protects civil rights, or is protected by civil rights, the novel pairing of civil rights and privacy rights commends itself. Yet, as we show, the pairing of privacy and civil rights is complex, consequential, and potentially disappointing. Privacy and civil rights have a mixed history of celebrated, but also ambivalent and condemnatory, partnerships. Little direct support for conceptualizing privacy or data protection as a civil right resides in the intricate history of U.S. civil rights laws. Still, civil rights law is a dynamic moral, political and legal concept adaptable to the demands of new justice initiatives. With that in mind, this Article critically examines the implications of legal interventions premised on pairing privacy rights and civil rights. We trace the contentious but paramount ideas of civil rights and privacy rights far back in time, revealing that important conceptual and historical issues muddy the waters of the recent trend freely characterizing privacy rights as civil rights or as rights that protect or are protected by civil rights. We conclude that one can sensibly contend today that privacy rights do and ought to protect civil rights, exemplified by the right to vote and freely associate; civil rights do and ought to protect privacy rights, exemplified by fair housing and employment rights that support material contexts for intimate life; and crucially, that privacy rights are civil rights, meaning that they are aspirational moral and human rights that ought to be a part of society’s positive law protections to foster goods that go to the heart of thriving lives and effective civic participation for everyone. By illuminating the remote and recent sources of what we term the “privacy-and-civil-rights” movement and its practical significance, we hope to empower those who pair privacy and civil rights with greater clarity and awareness of context, limitations, and likely outcomes.
h/t, Centennial Man