We discuss Prof. Scott Skinner-Thompson’s theory of “performative privacy” as a means of resistance for marginalized communities and its limitations, which he expounds on in his new book “Privacy at the Margins.” (Prof. Skinner Thompson is Associate Professor of Law at the University of Colorado Law School.)

Hosts: Andy Zachrich (J.D. ’22) and Ximena Velazquez-Arenas (J.D. ’23).

Episode Transcript

[Andy]

You’re listening to the Berkeley Technology Law Journal Podcast. I’m Andy Zachrich.

[Ximena]

And I’m Ximena Velazquez-Arenas. Today on the podcast, we will be speaking with Professor Scott Skinner-Thompson.

[Andy]

Professor Skinner-Thompson is an Associate Professor of Law at the University of Colorado Law School, where he is also an Affiliate Faculty member of the LGBTQ Studies Program. Before Colorado Law, Professor Skinner-Thompson was a Visiting Lecturing Fellow at Duke University School of Law and an Acting Assistant Professor of Lawyering at New York University School of Law. He also clerked for Judge Robert Chatigny of the United States District Court for the District of Connecticut, as well as Judge Dolores Sloviter of the United States Court of Appeals for the Third Circuit. Professor Skinner-Thompson received a J.D. and an LL.M degree from Duke University School of Law in 2008.

[Ximena]

Professor Skinner-Thompson was selected as one of the Best LGBT Lawyers Under 40 by the National LGBT Bar Association in 2014. While in practice, he served as co-counsel with the ACLU LGBT & HIV Project, the Center for Constitutional Rights, the Transgender Law Center, and the Transgender Legal Defense & Education Fund. We are excited to have Professor Skinner-Thompson on the podcast today to discuss his article entitled “Performative Privacy,” his new book “Privacy at the Margins,” and the panel discussion “On the Potential Conception of Privacy as a Civil Right” from BTLJ’s symposium “Technology Law as a Vehicle for Anti-Racism” on November 13th, 2020.

[Andy]

Here is our Big Conversation with Professor Scott Skinner-Thompson.

[Andy]

So thank you so much, Professor Skinner-Thompson for being on the podcast today. We’re really excited to speak with you. And our first question for you is: What made you interested in researching the role of privacy in the lives of different marginalized communities?

[Prof. Skinner-Thompson]

Oh, first of all, thanks so much for having me, Andy, I really appreciate it. And, you know, I got interested in issues of privacy, particularly as they relate to marginalized communities, when I was in private practice. I was able to partner with the ACLU LGBT & HIV Project to research a state that had fertile local state constitutional privacy law that might be used to challenge restrictive gender marker laws on government identification documents. And so, you know, through that research, it really helped highlight to me that, you know, privacy, in this instance, for members of the queer community, is critically important not just for, you know, privacy’s sake, right, but because privacy is fundamental to preventing a whole host of other very concrete and material kinds of harms. In this instance, if a gender non-conforming or trans person doesn’t have a government identification document that corresponds with their gender expression, every time they present that document, they may be outed, and that can lead to discrimination or, even worse, violence. So that was sort of my first introduction to the critical role that privacy played for members of different marginalized communities. And, you know, once I left practice, and started doing my own scholarship, I really started to see that that was not unique to the queer community by any stretch, but was actually held true across a whole variety of different marginalized groups.

[Andy]

And so you wrote your article called “Performative Privacy” in 2017. What inspired you at that point to write the article?

[Prof. Skinner-Thompson]

You know, at first, my research, I was very focused on basically preventing outings akin to what I just described, with sort of administrative regulations that, you know, are purportedly neutral but disclose sensitive information about people, and that leads to harm. And I still am very interested in that, and part of the book focuses on that, undoubtedly. But “Performative Privacy,” which was an article and plays an important part in my book, “Privacy at the Margins,” looks at how marginalized communities are actually resisting surveillance and taking efforts to protect themselves from a whole host of surveillance regimes, whether they be corporate, carceral, or administrative.

And so what I found was that a lot of times, members of different marginalized groups are engaged in forms of privacy resistance, and I argue that these acts of functional efforts to maintain privacy, whether in public by wearing masks or hoodies, or online by using encryption technology, Tor, etc., were not just serving that functional purpose of keeping something secret, though they did that. But they were also outwardly saying something, something expressive to the surveilors. And that was a statement of resistance. And indeed, the surveilors understand these functional efforts to maintain privacy as expressive and say, “Oh, if you’re engaged—if you care about privacy and are taking efforts to protect it, well, you’re expressing something intimidating. We’re going to use an old anti-mask law to throw you, the occupy-protester in jail, because you’re wearing a mask because it’s in ‘intimidating.’”

And I believe that in a social context of pervasive surveillance, that every step we take to protect our privacy takes on a heightened, expressive value, right, because deviating from the social norm of privacy surrender, the state views it as expressive and is targeting it for additional regulation. And viewed in this light, I believe that the privacy efforts should be entitled to First Amendment protection under a long line of jurisprudence, protecting expressive conduct or symbolic speech.

[Ximena]

So in your 2017 article, “Performative Privacy,” you frame the narrative on privacy resistance in a particular way. But can you give us a brief summary of what you see as the current dominant approach to privacy law?

[Prof. Skinner-Thompson]

Excellent question. Yeah. And I think the, you know, some speakers at the conference did a great job of setting the stage too. If I recall, Alvaro Bedoya focused and underscored the fact that privacy is [sic] oftentimes been framed and thought of in sort of abstract terms with reference to other philosophical values such as dignity, or autonomy. And undoubtedly that’s true; it does advance those values. But I think that courts and lawmakers have a hard time weighing privacy against security concerns when it’s conceptualized so abstractly. And so, you know, in the book, and in my other scholarship, I try to center how privacy is really critical to concrete, material injuries, you know, preventing discrimination, preventing violence, or, as in the case under the concept of performative privacy, of—it’s a direct form of resistance to the state. And I think courts are able to grasp those harms, grasp the material harms, and grasp the expressive harms, or will be able to in a—much more easily than they are more philosophical conceptions of privacy harm.

[Andy]

So I’m currently in an information privacy law class right now, and we have learned that, and this may be a bit of an overgeneralization, but we’ve essentially learned that public privacy in United States law does not exist. And so I was really interested when you wrote about the concept of public privacy in your article, and potentially in your book, and I was hoping you could explain this concept a bit for us and for our listeners.

[Prof. Skinner-Thompson]

Undoubtedly, the idea that there is no privacy once information is exposed to another person or third party or once you go out your door into the public has played an extremely detrimental and limiting role for legal protections of privacy. In essence, legal privacy rights are defined based on lived privacy. If you are not functionally able to keep something completely secret, what Daniel Solove refers to as the “secrecy paradigm,” then your legal privacy rights are non-existent. And this framework, which is, as you rightly note, relatively well-entrenched in American privacy doctrine, has particularly negative consequences for people from marginalized communities.

For example, if you are homeless or housing insecure and cannot afford to build the literal walls needed to keep your life private, then you have no legal privacy rights, which allows the government wholesale access to search your temporary shelter and remove it from public space, as an example. And given the degree to which marginalized communities, people of color, queer people, immigrants, are subjected to heightened government surveillance, right—they’re scrutinized more—and once they’re scrutinized, once the information is observed, then all other privacy rights go out the door. That means, that heightened scrutiny leads to a further erosion of privacy rights. So undoubtedly, and this is the first chapter of the book is talking about how that framework, which you underscore, of no privacy in public is particularly damaging for marginalized communities.

And yet, I believe that notwithstanding this widespread surveillance that many people, including, in particular, people from marginalized communities, do take subtle but significant efforts to guard their information every day, you know. And we will all experience this in different ways. You don’t need to be sort of a technology savant to get this concept. Like, if you—y’all are in the Bay Area, so maybe you take the BART, pre-pandemic, you know, you take public transport. Certainly you’ve been on your phone or had a book or texting [sic] something and thought, “Oh, maybe I don’t want the commuter, my fellow commuter next to me, to see that,” so you might shield it, right. And we do that kind of thing frequently. Back when we were allowed to go into public safely, like we would, you know, hush your tones at a restaurant if you were afraid of being overheard. And so, all of which is to say, that as a lived matter, we actually do expect privacy in public. And we do take subtle but significant efforts to maintain our privacy in public. And so the examples I gave are very run of the mill, but, right, but they’re much more drastic ones, right—wearing a mask to a protest, using Signal, using other encryption technology. And into—and my argument is that in the social landscape, and the legal landscape that you so rightly described, where there is no privacy in public, that, okay, that’s the sort of norm we’ve been socialized to. But when we take those efforts to maintain privacy, the state notices, they target us for additional surveillance, they understand we’re expressing resistance. And as such, our privacy efforts should be entitled to First Amendment protection, even though they may not get Fourth Amendment protection.

[Ximena]

That was such a wonderful presentation of the issue. And, in fact, when I was reading your article, I was thinking about how privacy seems like this “currency,” where if you’re wealthy enough to have those walls, as you mentioned, or those gates, then you can buy into privacy, and otherwise not in how its framed is around property, or Fourth Amendment protections. But increasingly, something that we’re seeing is, with the advent of current technologies, that public-private divide is also different. Do you think that privacy law has kept up with the current technology such as, you know, life on Zoom, or otherwise?

[Prof. Skinner-Thompson]

Two excellent points, Ximena. And the first point, I mean, about the commodification, I think is absolutely critical. And I don’t—I talk a lot about this in my own scholarship, but others such as Julie Cohen at Georgetown and Khiara Bridges, at your great law school, have talked about that, and how it’s extremely problematic, right. That we think of our information in this data-fied way that can be traded away. That if we just, you know, that, oh, you know, we’re just trading it to Facebook for access to this great service that they provide us. Sarcasm intended. And so, you know, that is a critical piece of the puzzle, no doubt. And so, your first point is so great that I got lost and forgot the second point, so maybe you can remind me.

[Ximena]

Yeah, absolutely. So that—it was a two-parter question. And the second part of it is: Given that so much of our experiences in lives increasingly are happening online, electronically, do you think that current privacy law has kept up with the technologies that are increasingly absorbing our lives?

[Prof. Skinner-Thompson]

So, you know—and this is an issue that has [sic], I think, different privacy scholars view differently. There are those who would say, “No, the law—the problem—the real problem is not that law’s like slow to catch up.” Others feel differently. What I’ll say is: I think that we need to, as Safiya [Noble] explained at the conference, reject this sort of tech fatalism, right. That “Oh, well, the genie’s out of the bottle, or, you know, the toothpaste is out of the tube, and so, you know, we’ll never get our privacy back.” And I couldn’t agree more that that should be—that sort of, “Oh, it’s a fait accompli” mindset should be pushed back on. And this is—Shoshana Zuboff in her great book, “The Age of Surveillance Capitalism,” rightly notes that that’s actually the message that social media companies and tech giants want us to have. Right? Like they want us to feel defeated, okay, because then we stop resisting.

And I just don’t think that’s true. Have we—has our privacy diminished net 20 years ago? I think the answer to that question is undoubtedly, yes. Is there a way to reverse course and push back on these technologies? Absolutely. And you know—and there is a way, and this is the course of human history, right? Like movements—people that are dedicated to a cause, see something happening and they change it and there’s no reason why the norms regarding privacy laws that have been ingrained in us by tech companies cannot be pushed against. And I actually think, you know, the fact that we’re having this conversation, the fact that you had your great conference is evidence of the fact that people are indeed waking up to this. And tech companies, and government surveillance alike, are coming under increased scrutiny.

Now, make no mistake, you know, I don’t want you to think I’m a Luddite here and think all tech is bad. That’s not my position. I use it and we’ve benefited from it on many scales. But that’s not to say it cannot be improved. And as, you know—many people in the—less so the legal context, but the computer science and communications context—such as Anna Lauren Hoffman at University of Washington, have been arguing, “Look, it’s like—we need to incorporate better first principles into the design process from the beginning and not just, you know, create the tech and then be like, ‘Oh, what have we done?’” I have been using this line a lot. I don’t, you know—you folks may or may not have watched Jurassic Park. But when I was a kid, it was like, you know, the big—the cat’s meow, so to speak. And there’s this line in the movie where they’re like, the scientists were too busy asking whether they could create the dinosaurs that they never stopped to ask whether or not they should. And like—and that’s the same ethos that describes a lot of our tech development, and I think we need to inculcate the “should” question in advance of the “could” question.

[Andy]

It’s actually really fascinating that you say that, because we spoke with a professor and a student at University of Washington on our last podcast, and they had a similar sentiment, where it’s the law that’s not responding—or the law could respond, but the, like, the technology is not moving too fast, essentially. But this is also a really good segue, because you’re speaking about pushing back and movements. And while we can’t change the technology because we’re lawyers, you explore this concept of performative privacy in your works, and I was hoping you could expand on that? And then also maybe give a few examples of performative privacy to illustrate it for our listeners.

[Prof. Skinner-Thompson]

Yeah, so the concept of performative privacy is that—so we’re living in this social world, as you’ve aptly described, where the norms, both interpersonal and vis-à-vis the government, are one of information surrender. And so, I believe that, into that space, people, including many members of marginalized groups, are trying to claim back and take steps—functional steps—to resist that information surrender. And that when they’re doing so, they’re not just protecting something inward, right? They’re expressing something outward, and they’re reshaping norms, expressing resistance.

And so examples include, you know—I think more obvious or outré forms of privacy resistance include, you know, there are designers such as Adam Harvey, who has created sort of different makeup styling that can subvert facial recognition technology or apparel that can block infrared heat detection. So those are sort of, you know, as I said, like high-tech, sort of very obviously expressive, right, like art, essentially. But there are more commonplace forms as well. And I think, you know—and again, to be clear, I—and this is something I emphasize in the book, you know, people engage in some of the acts that I’m about to describe for lots of different reasons, okay. And I’m never trying to—I’m not trying to suggest that a particular person is doing it for resistance. But I think the government views it as resistance, which is important to—whether or not they intend it as such—which is important to the First Amendment analysis and I can talk about that more in a minute if you like. But, you know, when a person of color wears a hoodie, you know, as underscored by the Million Hoodie March, right, and in the tragic killing of Trayvon Martin, and then in the scholarship of Devon Carbado and Mitu Gulati, they talk about how people of color are conditioned to sort of signal compliance with authority by giving up their information. And if they do not, if they resist it even by like wearing a hoodie, they’re targeted for additional surveillance. If a Muslim woman is wearing a headscarf, she may be doing that for religious purposes, but the state is trying to pierce that veil, right? And there’s a long history of colonial gaze trying to, in essence, get a better view of Muslim women’s bodies. And you know, and when a trans person refuses to comply with an administrative regulation saying that they need to only use the restroom that corresponds to their sex assigned at birth—and that would out them—and instead use the bathroom that corresponds with their gender expression, yes, they’re living their gender identity, and they’re performing privacy. And so, you know, all these different examples are—they’re not identical, right? They operate in slightly different ways. But I do think there’s some common themes. One of the common themes is marginalized groups and identity. And the second is, like, resisting some aspect of the surveillance gaze. And again, I want to be crystal clear. I don’t think the privacy, performative or otherwise, is a panacea to the myriad social ills that our society is facing; like the key to stopping, you know, oppression and racism is anti-racism.

[Ximena]

In your article, you lay out this historical foundation too for the over-surveillance of certain groups. So you just mentioned, for example, the resistance through hoodies and that was one of the elements in the article. You also mentioned the resistance through gender expression and cyber masks as well as the veil worn by Muslim women. And in all of those, I was finding this connection as far as the agency of the person, that you mentioned as well, being one where you’re reframing the context from having something to hide in terms of privacy concerns, to rather being out and proud in your agency and expression. But I’m really concerned along with that, how, in some ways, that’s not as much of a choice for certain groups. And I guess let me be a little bit more concrete with the example that came to mind, which was, just as you mentioned, for the bills around the country that have surfaced in asking for transgender people or gender non-conforming people to show their papers at the bathroom. And the response to that being one that is not going back into the closet, but having the agency of their right to privacy, and choosing the self-determination for what to keep private and what not. There are certain groups that that responsive assertiveness could be further detrimental, right, like specifically with undocumented communities or the like. So I guess the question that I’m trying to ask is: how do these forms of agency in performative privacy—how do they also have inequitable impacts?

[Prof. Skinner-Thompson]

Wonderful question. Thank you. And let me just say that your sort of preparatory framing of the sort of liberatory potential of performative privacy was beautiful, and more beautiful than I did, in my own words. So thank you for that. But I think your question about the drawbacks or limitations of this is really important. And I think maybe put slightly differently is, like, there’s a tension, right, between performative privacy and privacy as key role for marginalized groups and visibility, right? And then the visibility is actually, in certain contexts, really liberating as well. And I couldn’t agree more. And I guess what—how I try to resolve that potential tension is that, you know, it is—it should be up to each individual, and their agency, whether they are, you know, trying to keep aspects of their body secret, or not, you know? A lot of these involve very corporal forms of surveillance—really trying to get at the body. And, you know, and that may be linked to identity and it may not. But I couldn’t agree more that individual agency is what should be—should come first. I don’t—you know, when it comes to whether or not someone’s identity or aspect of their identity should be made public or not, like, I think there’s real value in going public with a stigmatized characteristic, you know. An example of this is in the abortion rights context, you know. Abortion has been highly stigmatized in our society, and more and more we’re seeing, you know, groups like “Shout Your Abortion,” and other courageous women—which is not to say if you don’t shout your abortion, you’re not courageous. But coming forth with that, right? And that’s great. That’s amazing. And that can help destigmatize it. But nobody should force anybody to shout their abortion. Like, that should be up to each person to talk about their reproductive health.

And so—but I think there’s another aspect of your question as well: what about the aspects of your identity that you just, you can’t keep private? And that’s—I think that, you know, one example where this really resonates for me is, like, in the queer space. If you’re gender non-conforming, and you’ve like, you know, if you live in an area where the bathrooms are still sex segregated, you know, there’s just male and female, and you can’t “pass” in either of those, what are you to do? And maybe you don’t want to pass, right? It’s a real limitation and a real drawback, which I think gets me back to an answer to one of Andy’s questions, which is, like, I’m viewing this through a public health, like, harm reduction method. I don’t think it’s a panacea. And that, you know, the key solution, the best solution for—in this example is, you know, genderless bathrooms, right. Like that, that helps, that solves the problem. So absolutely, I couldn’t agree more. It’s a really insightful point and an important limitation of this framework.

[Andy]

So far, it sounds like we’ve been talking a lot about state violations of privacy. But increasingly, we see corporate entities engaging in surveillance, either to data mine, or sometimes they’ll even hand that information over to the government. And so I guess I wanted to know if you thought about how we can apply these concepts of performative privacy from your works in relation to invasions of privacy from corporate or private entities, and how we can protect against that kind of surveillance?

[Prof. Skinner-Thompson]

Absolutely. They’re both equally as important, and in part because of the very first question you’re asked, right. That, like, since legal privacy rights are framed in terms of lived privacy, like, a privacy invasion by a corporate entity is going to pave the way for government access and vice versa, right, potentially. So how can thinking about privacy as expressive resistance help us against corporations? We don’t have First Amendment rights against corporations, right? The Constitution with, you know, important exceptions like the Thirteenth Amendment abolishing slavery, doesn’t protect us versus private parties. It protects us versus the government.

So, how does thinking about privacy as expressive resistance help? I think it helps in this way. So, a lot of corporations, when they are confronted with a privacy regulation, what do they say? They say, “You can’t regulate us from getting this information because OUR First Amendment rights are at issue. WE have a right to information gather under the First Amendment, to record.” And this is playing out right now, right. Clearview AI has said publicly, like, that they cannot be regulated, and they can go on to social media and scrape people’s faces off of social media accounts and use that to train the facial recognition software. Okay. And why have they said they can do that? Because of the First Amendment. That they have a First Amendment right to collect that information. So, a lot of times, corporations will rely on the First Amendment to defend themselves against privacy regulations.

But if we understand that people’s efforts to protect their privacy is also a form of expression under the First Amendment, then when a court is evaluating under the First Amendment—”Okay. Is this regulation of Clearview consistent with the First Amendment?” Then the government can say, “Yeah, we have this.” You know, for example, Illinois and California have relatively robust privacy laws. And when applied to regulated entities, they can say, “Look, this is—yeah, they there may be a First Amendment interest at stake for Clearview, but the individuals that we’re trying to protect also have a First Amendment interest directly related to their privacy. And that gives us the compelling government interest we need, okay, to justify the regulation of Clearview.” So, understanding privacy as expressive resistance, in essence, gives the government a freer hand when trying to regulate private entities, which they are increasingly trying to do.

[Ximena]

So to follow up on that, I couldn’t help but think about the idea of consent, as well, as I was reading your article. Specifically, this notion that there has to be an affirmative expression that, when you’re in public spaces, you’re not giving away your right to privacy, as I think has been traditionally held. But rather, you can still hold on to that. Which I inevitably just associated with consenting, even if you’re in public spaces, those individual protections would still apply to the things that are inherent individual agency matters. And something else that was really illuminating in your article is that you mentioned that we could shift the focus if we thought about privacy in this way of assenting as something that was to be celebrated and good, rather than something that conveyed that we had something to hide or there was something negative in seeking out privacy protections. And with that in mind, I’m also thinking, what are the consequences of the era that we’re living in now with COVID, having perpetuated this completely unforeseen new world of people wearing masks? And what do you think the effect of the pandemic has [sic] in relationship to your theory of privacy rights?

[Prof. Skinner-Thompson]

Super interesting. So, on the first point, absolutely. I mean, I think that privacy has been, you know, is seen—when people think that—we’ve been conditioned to think that those who care about privacy have something to hide. And, you know, it needs to—we need to be suspicious of it. But at the same time, society loves expression. Like, people on the right and left, you know, yes, there’s this concern right now about First Amendment Lochnerism and First Amendment—the deregulatory First Amendment, but that notwithstanding, you know, people across the political spectrum generally think that free speech is, like, is great. And so reframing it as outward, as part of that as participatory democracy, I think holds not just doctrinal promise, but also discursive promise in reshaping how we think about privacy.

With regard to COVID and the impact of masks, you know, as someone who’s been writing about masks for a little bit of time, it has been interesting for me to see these headlines that are like, “Masks are now political.” Actually, masks have been always been [sic] pretty political, you know, as the examples I talked about in the article and book underscore. And I think we’re seeing that at scale, right. Like people are going to protest and wearing masks—protesters often wore masks, but now they’re wearing masks—well, some protesters are wearing masks even more. And they’re doing it for a public health reason and for a privacy reason. And I don’t think that that diminishes the salience of what I’m saying. If anything, I think it actually embellishes and just underscores this notion that what we choose to reveal or conceal is a highly political, laden decision, and people respond to it and understand it as political, right? You—we have people being, you know, like, targeted for wearing a mask for COVID-related purposes. So I think if anything, it just shows that this concept of expressive privacy has some water and—holds some water—and we’re seeing it operate at scale. And we’re already seeing it operate at scale, even before COVID. I mean, if you think back to last summer, the protests in Hong Kong, which I talk about in the book, which happened after the article, you know, in those protests you have a massive surveillance state, the Chinese government, and the people took to the streets in huge numbers. And, like, they all wore masks because they were like, “We don’t want you to surveil me.” The police started wearing masks, too, because they realized the protesters could surveil them, and then, like, potentially dox them. So the masks became—and faces—I think in a New York Times article, they talked about faces were becoming weaponized. And, you know, I think that there’s a growing awareness that protecting information about our bodies and faces is a politically expressive act.

[Andy]

So we’ve talked a lot about privacy as expression, as a way to protect marginalized communities and communities who are over-surveilled by the government. But I guess I was really curious about how you were picturing this going down in a court of law. So, a more concrete question, imagining maybe a potential case or what this would look like if it comes in front of a judge, or  the Supreme Court?

[Prof. Skinner-Thompson]

(Laughing) Andy, it’s just it’s so rude to ask an academic to actually, like, either come up with something, apply, but would work IRL, but I’ll take a stab at it.

So, I think it could work in a—in a couple different ways. Like, for example, there have been cases where—and again, a lot of privacy defendants, have relied on the First Amendment themselves, right, to say, “You can’t regulate me, what I’m doing is protected by the First Amendment.” So, like artists in New York taking pictures of their neighbors through their windows, and then, you know, including those in a show. And they’ve said, “Well, this is protected by the First Amendment. You can’t use your New York privacy law to come after me for taking a picture in your show.” But I think that if a court adjudicating that case said, “Well, were members—were the people being surveilled? Also, did they have any First Amendment interest in their privacy? Did they try to resist it at all?” And if there were examples of where that happened, then I think a court could more equally weigh the privacy interest.

And again, you know, I think it also could help reframe judges’ formulation of the reasonable expectation of privacy test in the Fourth Amendment context, right? Because we’re all being conditioned to say, “Oh, once you go out the door, you have no expectation of privacy.” But then once we start thinking about how actually people do sort of expect privacy, they are taking functional efforts. When the government tries to penetrate or overcome those efforts, in effect dampening their speech, making their speech obsolete, then there might be a First Amendment claim, but it could also help rejuvenate, in the Fourth Amendment context, what we think of as a reasonable expectation of privacy, which, as you noted, is an extremely beleaguered and weak concept at the moment.

[Ximena]

So this this question is kind of turning on a bit of your utopia. And essentially, it’s: What changes do you think need to happen in the United States, possibly abroad, to create an information privacy regime that is more equitable?

[Prof. Skinner-Thompson]

(Laughing) It’s a big question. I think lots of things need to happen. And constitutional law, you know, which is where I write in mostly, is really only scratching the surface, right. And as, you know, an earlier question suggested, it only protects us against the government, and we’re going to need robust privacy regulation, and for that we’re going to need the government. I do think that, you know, the fact that Europe has led the way with the GDPR is good, that’s going to put some pressure on the United States. I think California’s privacy law is going to have an impact. I think the more states do things, that’s going to create incentive for a national law, because regulated entities aren’t going to want to have to contend with multiple state—different state laws, right? Like that’s more onerous; they’d rather just have one uniform law. So they may actually start to come out in favor of a federal law that preempts the state laws. So I think those things are gonna help.

But I think the attack, you know, has to be multi-tiered, right? We’re going to need improvements in constitutional law—which is where I’m sort of focused—we’re going to need increased individual awareness and more privacy activism, and we’re going to need more regulatory action as well. And then, finally, I think we’re going to need to embed in tech companies, you know, more design ethics that considers privacy harms at the front end. So those are sort of the starting things. You know, I’m under no illusion that it’s going to solve everything. But again, I don’t think that perfect privacy is necessary, right? I’m not—I’m not trying to get us back to a world where, you know, we’re, like, we’re living in little hermeneutic [sic] bubbles, right. I’m about decreasing the flow of information to protect us from concrete harms. And you know, that—I think, if we start there, like, and privilege that harm as the focus of our solicitude, then, you know, to the extent we get more than that, great.

[Andy]

So, moving on to our final question. When we were reading your writing, we both commented that it was excellent. It’s incredibly clear, and your arguments are very well laid-out. And so we wanted to ask you, if you had any writing-related advice for law students or academic writers who may be listening, and then we also wanted to expand on that and ask if you had any general advice for law students, or others, who may want to pursue a career in academia as well?

[Prof. Skinner-Thompson]

Well, thank you so much. That means, actually, a great, great deal to me, honestly. And I would say, I guess, a few things. One is, you know, being a good writer, and being a good legal writer, takes practice. Like, it really does. And so, take advantage of opportunities to write if you’re still in law school. You know, take classes that have a writing component. And rewrite. I mean, you know, first drafts are terrible.

And in terms of actual concrete techniques, I believe that simplicity is good—like, simple, single-clause sentences. If you feel like you can’t say a sentence—read out loud a sentence in one breath without falling on the words yourself, the sentence probably needs revision. So, one thing I do is try to read orally what I’ve written to see how it flows. I don’t obviously do that for everything, but, you know, particularly for introductions or things where it’s important, I think that’s a good technique.

I think writing is fun. I think that we are—we tend to invest more in things we enjoy. And so I would encourage you to cultivate a joy for writing. And don’t view it as something that’s necessarily scary or needs to be complex. Like, again, simple is good. And, you know, I think, experiment with different forms, too. I mean, one thing I try to do is like I write law review articles, but also try to write, like, maybe a public education piece that corresponds to it. And so you know, that—that’s like breaking it down to a thousand words. And so, you have a big brief, well, try to get it into a thousand words. I used to teach legal writing at NYU, and we would do these—and I didn’t come up with these—but these were some of the gimmicks that we would deploy in teaching writing to make it more fun, but also to, like, get you to hone in on the key message. You know, let’s say you’re working on a brief. All right, try to get the argument from the brief in the form of a limerick or a tweet, right. Like, try to condense it down, make it short, like, cut through the B.S. So those are—those are some techniques, sort of, you know, some very specific and others pretty broad.

I do think it’s important to get feedback on your writing, like, share it with people. I felt like I really grew as a writer when I was a law clerk. Like, I was lucky to have judges who, you know—one judge would hand-mark-up my writing, and then we would go over her edits, like, sitting side by side together. And, like, it was painstaking, but it was so helpful. And so I think, you know, finding someone, you know, whether it’s at your place of work or even just your classmates, right—y’all are, like, here in law school, you’re really smart, like, you can help each other. I think that’s a good way to improve your writing. Read good writing; that helps, too.

In terms of the second part of becoming, was it, was it who wanted to be an academic? Is that right? You know, I think doing a note, starting your scholarship in law school is really helpful. It doesn’t need to be big—it doesn’t need to be published, but just practice writing and start to develop a scholarly interest. And it doesn’t matter what they are. I would say that, you know, regardless of whether you want to be an academic or anything in your career, one piece of advice I try to give students is, like, create at least two themes in your resume, like, two areas where you have credible expertise, where you could get jobs. And that will help you have some flexibility, and, also, if you do go on to the academic job market, will allow you a bit more breadth in terms of your subject matter expertise.

[Andy]

So that’s all we had for you today. But we really appreciate you coming on the show today, and we wanted to thank you for being here today.

[Prof. Skinner-Thompson]

Well thank you so much for having me. It was a real joy. Fantastic questions, and congratulations on the great symposium as well. Thanks so much.

[Ximena] Thank you for listening! The BTLJ Podcast is brought to you by Podcast Editors Andy Zachrich and Haley Broughton. Our Executive Producer is BTLJ Senior Online Content Editor Allan Holder. BTLJ’s Editor-in-Chief is Emma Lee.

[Andy] If you enjoyed our podcast, please support us by subscribing and rating us on Apple Podcasts, Spotify, or wherever you listen to your podcasts.

[Ximena] If you have any questions, comments, or suggestions, write us at btljpodcast@gmail.com.

[Andy] The information presented here does not constitute legal advice. This podcast is intended for academic and entertainment purposes only.