Tragically, U.S. privacy law has neglected to address a significant dimension of privacy. While lawmakers and judges have routinely recognized intrusions into our secluded spaces and breaches of our confidentiality and secrecy, they have largely failed to protect our most common yet also our most underappreciated form of privacy: the practical obscurity that allows us to live freely and with dignity.[1] Obscurity, which is the state of protection that arises when personal information is difficult for some people to obtain or correctly interpret, serves several vital interests: (1) it safeguards our ability to express ourselves without fear that everything we say could be used against us; (2) it enables us to participate in key democratic processes like protesting without the government recording our opposition in a database; and (3) it allows us to form intimate relationships where we selectively share what is on our minds and in our hearts.[2] Ultimately, obscurity provides the “breathing room” we need pursue self-development or establish healthy boundaries with others.[3]
Around the world, there is tremendous anxiety about surveillance because new digital technologies and systems have drastically reduced obscurity. For example, it was once difficult to track ongoing movements. Now, apps tell parents exactly where their kids are at all times, and law enforcement can use geofence warrants to compel tech companies to disclose the location data for large amounts of people who were at a particular location during a specified time period. Indeed, in the age of AI, there are too many powerful obscurity-eviscerating tools that make it too easy to find, aggregate, and exploit our personal information.
In this Essay, which reflects on Chinmayi Sharma, Thomas E. Kadri, and Sam Adler’s thoughtful and urgent article Brokering Safety, we argue in favor of a legally protected right to obscurity that is tied to human dignity and capabilities.[4] Appealing to this organizing principle can help lawmakers better mitigate the ongoing obscurity harms that people suffer every day. Indeed, a right to obscurity grounded in human dignity and capabilities can anchor a robust approach to surveillance reform that includes interventions, ranging from procedural rules to outright bans. Crucially, it can offer robust justification for bespoke interventions, such as one proposed in Brokering Safety, that protects our most common but underappreciated form of privacy.