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Privacy’s Democratic Pushback


Scott Skinner-Thompson (@juriscott) is an Associate Professor at the University of Colorado Law School.

Safeguarding privacy’s role as a form of friction-creating, agonistic participation is a key component of current efforts to create a more equitable public square. The public square is, in theory, a place where people with different perspectives and backgrounds can come together to discuss, contest, and potentially reconcile their views on governance and social policy. In reality, the public square—whether IRL or online—is too often a place of surveillance, violence, hate, and subordination, with members of historically marginalized groups bearing the brunt of these harms. The vitriolic public square imposes individual harms and group harms, pushing out entire segments of society, decreasing the heterogeneity of our discourse, perpetuating the dominance of neoliberal voices, and facilitating political polarization through isolated echo chambers.

Important discussions are percolating about how to reform—and govern—the public square to help it live up to its democratic potential by safeguarding it from abuse. Such reform discussions range from increased liability for digital platforms that facilitate privacy abuse through non-consensual pornography (e.g., Section 230 reform) to protecting the sanctity of those who must make their homes on public property out of economic necessity (e.g., repealing anti-camping and sit-lie laws). Understanding privacy’s role as a form of expressive pushback or contestation is critical to these discussions.

Privacy is not, as it is often caricatured, some inward-looking, defensive right of those with something to hide that can be easily sacrificed in the name of other objectives. Perhaps counterintuitively, privacy rights critically enrich the public square in several ways.

First, as many scholars have underscored, privacy helps create sanctuaries for the individual and group cultivation of ideas that can be tested and, potentially, expressed in the public square. Such sanctuaries are particularly important for marginalized groups, who can use the protections afforded by privacy to create “subaltern counterpublics.” As Catherine Squires has explained, such spaces can be “enclave[s]” where “counterhegemonic ideas and strategies” are developed, or they can be more outward-facing “counterpublic[s] which engage in debate with wider publics” in order to influence them.

Second, while unfettered visibility through surveillance imposes substantial risks for members of marginalized communities, controlled visibility through privacy protections and acts of what we might call privacy resistance has the potential to serve important anti-subordination goals and lead to the broader participation of entire communities in the public square.

But beyond facilitating ideas and participation, privacy is often a form of expression and pushback itself. While public appreciation of privacy’s importance is growing today, perhaps as evidenced by the recent downward trend in Facebook users, many members of marginalized groups have long understood surveillance’s role in subjugation and combatted that subordination through their resistance to surveillance. They have done so through their active disavowal of surveillance techniques and norms: by deploying obfuscation technologies; by wearing masks, head veils, and hoodies; by creating shelter in public space to survive; and by using public restrooms that correspond with their gender expression or identity, rather than their sex assigned at birth.

In doing so, members of marginalized groups have used privacy itself to create agonist, participatory friction. In other words, they have acted to influence social attitudes about the value of privacy and the value of their identities through practices that contest surveillance regimes. As each of the above examples shows—and as discussed more fully in my other work—privacy performances are participation through which marginalized groups challenge the homogeneity of the public square while protecting themselves from violence and subordination.

These privacy performances are acts of expressive resistance to surveillance regimes that, as I have written elsewhere, “communicate and signal opprobrium of surveillance, shine a critical spotlight on that surveillance, and in so doing, offer a reimagined place for privacy in our social structures.” They are an embodied example of what Bernard Harcourt might label “critical praxis,” or what Judith Butler characterizes as the “plural and performative right to appear, one that asserts and instates the body in the midst of the political field, and which, in its expressive and signifying function, delivers a bodily demand for a more livable set of economic, social, and political conditions no longer afflicted by induced forms of precarity.”

Put differently by Seeta Peña Gangadharan in her work on the willful (as opposed to coerced) self-exclusion of different marginalized groups from dominant modes of tech-based interactions, “when marginalized people refuse technologies, they imagine new ways of being and relating to one another in a technologically mediated society.”

So conceived, privacy performances are an embodied example of agonistic participation that, pursuant to contestatory theories of participation developed by scholars such as Chantal Mouffe, form a critical component of democracy in action. Under agonistic, pluralist conceptions of participatory democracy, “a central task of democratic politics is to provide the institutions which will permit conflicts to take an ‘agonistic’ form, where the opponents are not enemies but adversaries among whom exists a conflictual consensus.” According to Mouffe, without such confrontation of political positions, “there is always the danger that this democratic confrontation will be replaced by a confrontation between nonnegotiable moral values or essentialist forms of identifications”—a phenomena all too familiar in the American political landscape.

Appreciating privacy’s manifold agonistic and participatory benefits, along with its expressive First Amendment pedigree, will be a critical component of any efforts to rectify the problems besetting our public sphere. Privacy helps people from marginalized groups appear in public on their own terms by mitigating the violence and harassment that surveillance enables. In turn, it helps them enrich and shape the public sphere through the inclusion of their identities and their ideas—often through acts of surveillance resistance and privacy performances.

Marginalized groups’ efforts to maintain privacy operate as a form of friction-creating expression, shaping societal norms about privacy, identity, participation, and modes of public self-expression. This is a benefit separate and apart from any subsequent agonistic insights that individuals will proffer once they have garnered greater access to the square. And that agonistic friction, if safeguarded through privacy protections, may also help decrease some of the dangerous polarization plaguing the American political landscape by ensuring that the public square is a place for such productive friction, preventing dangerous and monolithic groupthink from dominating.

This piece is, in part, an excerpted summary of Scott Skinner-Thompson, Agonistic Privacy & Equitable Democracy, 131 Yale L. J. Forum 454 (2021), a part of the Forum’s collection on Envisioning Equitable Online Governance, published with the generous support of the Knight Foundation and the Information Society Project.