Raymond H. Brescia*
Abstract
Our individual and collective identity is reflected in our desires, our affiliations, our political choices, and the social movements in which we participate. This identity plays a central role in the enterprise of collective meaning-making, the realization of self-determination, the creation of social capital and societal trust, and the bringing about of social change that overcomes subordination. The integrity of this form of identity is mostly protected through the cluster of phenomena that has come to be known as the right to privacy, but it is a particular type of privacy, what I call political privacy, where these notions are centered. While some legal scholarship addresses the role that privacy plays in promoting individual autonomy in democracies and recognizes that privacy has some public features generally, this article approaches the problem of political privacy from a different perspective. It brings a body of social-movement scholarship to bear to inform our understanding of the role this form of privacy—as manifest in the integrity of individual and collective identity—plays in liberal democracies. Informed by this body of social-movement scholarship, I will attempt to elevate the importance of the integrity of individual and group identity as a collective and public good itself, as a product of, and which is manifest in, our associational ties. While this political privacy is critical to political autonomy and democracy, it is also under considerable threat in the digital age. At a time when new technology makes the search for one’s political identity easier, more expansive, and more liberating, it also creates a paradox: this search for identity and community is also one that is conducted with few protections; it is subject to exposure, sale, and distribution, often without our consent. Given the critical role that private, digital platforms play in fostering the exploration, creation, and maintenance of individual and collective identity today, and the growing role they are playing in social-movement mobilization, I argue here that the integrity of individual and collective identity deserves greater recognition and protection, especially in private-law settings where such interests are exposed at present and where the law is less robust than in public-law settings, where associational privacy is more commonly respected. This Article attempts to address, identify, and analyze not just the threats to the integrity of individual and associational identity that exist in the digital world but also the viability of the private-law tort of intrusion upon inclusion as a means through which we can preserve this integrity. My normative claim is this tort, while generally recognized as a negative right that protects us from certain intrusive behaviors, should also be conceptualized as a positive right, the protection of which makes the realization of our associational life possible and meaningful. It also presents strategies for strengthening the application of the tort to such associational life in more robust ways moving forward.
* Hon. Harold R. Tyler Chair in Law & Technology, Albany Law School. The author thanks Erwin Chemerinsky, Robert Post, Scott Cummings, and Russell Bogue for their feedback on earlier drafts.