By Angela Yang
When the Dobbs v Jackson Women’s Health[1] decision officially came down, I was knee-deep in a project at the Citizen Lab, reviewing EU governments’ circumvention of EU citizens’ right to privacy through their abuse of spyware surveillance technologies. Having spent a significant amount of time in the US and having dedicated myself to reproductive rights issues while I was there, I had been following the case closely since oral arguments. Though the leaked draft[2] had pretty much foretold the end, like many, I was still unprepared. I was caught off-guard by the cavalier attitude the majority demonstrated not just towards precedent, but also towards the legal reasoning within Roe v Wade.[3] I had not quite steeled myself towards the majority’s willful dismissal of the last fifty years of intentional and necessary choices made and life trajectories changed for the better.
I spent that day in a state of listlessness. I sat in front of my work notes, watching the cursor blink, in suspension. Every so often I would open Twitter and watch the posts about the decision cascade down my feed. In the echo chamber I had curated for myself – all the valid criticisms of skewed perceptions aside – I found an odd source of comfort. I took much-needed solace from the many others who could, in 280 characters, capture their grief, anger, and helplessness – and my own. Resist helplessness always but my god, what a sad and stupid time, lamented The New York Times’ Elisa Gabbert.[4]
I texted a friend who had just finished her first year of law school in the States: …
She texted back: …
Neither one of us could find the words.
In the face of the enormity of Dobbs and its implications for fundamental rights, I suddenly found myself reflecting on, and quite honestly, doubting, the import of the work I was doing. How could digital privacy hold up to the concrete loss of bodily autonomy, I thought. How could issues of cybersecurity hold up to the tangible choice of continuing, or more specifically being forced to continue, with a pregnancy, I wondered. What was state-sponsored hacking to the measurable impacts of being able to shape your own life path, on your own terms, I questioned.
Instinctively, I could not, or perhaps I did not want to, realize the connections.
In a call with a friend that night, after listening to me try again and again to articulate my feelings, she suggested maybe it was a good thing that I wasn’t working on this very issue. I considered that it was probably preferable to have that distance between life and work.
And yet, the core of Dobbs is precisely the right to privacy.
The majority in Dobbs overturns Roe by rejecting the right to privacy as a constitutionally-rooted principle. In Roe, Justice Blackmun had chosen to center the right to privacy, which Griswold v Connecticut[5] and other cases had read into the Fourteenth Amendment a decade prior, rather than equal protection. Despite Justice Ginsburg’s (in)famous critique of the inadequacy of the right to privacy as the grounds for Roe – in that it became too concerned with doctors and wasn’t woman-centered[6] – this right has since formed the cornerstone of many other deeply significant rulings: the right to same-sex intimacy[7] and the right to marriage equality,[8] just to name a few. In R v Morgentaler, Canada’s abortion case, though the justices on the whole refused to engage with the right to privacy in the vein of Roe, Justice Wilson concluded that the right to liberty in section 7 of the Canadian Charter in fact guaranteed the “personal autonomy over important decisions intimately affecting their private lives.”[9]
Privacy, it turns out, is irrefutably inextricable from everything I was doing and everything I cared about.
It is slightly embarrassing to admit that, while I have worked for over two months exclusively on issues relating to privacy, I am only now attempting to examine what that actually means. Although, based on the dictionary definition alone, I almost feel vindicated in my struggle to parse through these conflicting thoughts – trying to reconcile on the one hand, the values I could recognize as rationally important, but distant to myself, as reflected by my work at the Lab; and on the other, the values I thought were inherently significant to me, as reflected by the decision in Dobbs.
Merriam-Webster defines privacy in two primary ways: a) “the quality or state of being apart from company or observation” or b) “freedom from unauthorized intrusion.”[10]
Taking the second definition as the more legally significant, questions abound. What qualifies as intrusion? Intrusion from whom, or from what? Who gets to authorize intrusion? Why would some forms of intrusion be authorized in the first place? Maybe these considerations are the point, the reason why courts across the board have been so reticent to recognize and substantiate this right. Be that as it may, what, then, is the connection between the elusiveness of this concept to my impulse to consider privacies in hierarchy, where some forms of “privacy” seem to matter more than others?
Earlier this summer, to prepare a lawyer at the Lab for her Senate testimony, I followed Canadian Senate debates about Canada’s proposed updates to powers granted to the Canadian Border Services Agency (CBSA) when its agents are conducting secondary searches at the border. This new bill[11] maps out a threshold for when CBSA agents can search people’s digital devices – more pointedly, this threshold determines when they can ask travelers to provide them access to all the content stored on their phones or laptops in the name of national security. To explain the new threshold, the Minister of Public Safety illustrated a spectrum of intrusion, which he took care to add was also backed up by jurisprudence: physical mail on one end, the physical body on the other. Intrusion into physical mail requires no justification; intrusion into the physical body requires serious justification. Digital devices fall somewhere in between those two, and, as far as fixing the threshold for intrusion, does not require as high a standard as that of the body. In terms of privacy considerations of the two spheres, the digital still stands apart from, and below, the physical.
Perhaps my impulse can be explained by this kind of common sense. In this way, it is no wonder that digital rights experts were also sounding warning bells in the aftermath of Dobbs. If the right to privacy in the sense of bodily autonomy has no constitutional basis, then it also suggests that the right to digital privacy is in peril. But here I am confronted again with the challenge of definition. The bounds of privacy and the kind of intrusion are never made explicit, which means that what exactly the right to privacy encompasses (and what kind of protection is lost) has become a fill-in-the-blank game.
It appears too, that the ostensible hierarchy of privacies breaks down further upon reflection into the interconnectedness of our offline and online lives. Soon after the decision was released, experts highlighted the dangers of using period tracking apps[12] in the current sociopolitical and digital landscape where the laws around data collection are insufficient or simply do not protect users; where the processes for government or third-party acquisition of what is often intimate and personal data online is opaque; and where digital activity can have direct effects on offline behavior and mobility.
Unexpectedly, I have returned to where I began.
At that time, I also couldn’t help but feel the absurdity of my own situation. As I sat in the comfort of my own home in Montreal, the classic trap of doing human rights tourism rather than genuine work was not at all applicable to me. My work did not require me to face those thorny questions. I was also not needing to navigate cultures and norms that in practical ways were different to the ones I’m familiar with. My work did not ask me to adapt or even necessarily to check my assumptions.
All the same, I was challenged and humbled by this guilt.
Recently, I spent two hours on the phone with my mom, detailing the ins and outs of the work I was engaged in. It’s so easy to think lightly of this issue, I told her, but there is actually so much at stake here.
___
[1] Dobbs v Jackson Women’s Health, 597 US (2022).
[2] “Read Justice Alito’s initial draft abortion opinion which would overturn Roe v. Wade” Politico (2 May 2022), online: <https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504>.
[3] Roe v Wade, 410 US 113 (1973).
[4] Elisa Gabbert, “Resist helplessness …” (24 June 2022 at 10:48), online: Twitter <https://twitter.com/egabbert/status/1540346047108730880>.
[5] Griswold v Connecticut, 381 US 479 (1965).
[6] Meredith Heagney, “Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit” (15 May 2013), online: The University of Chicago Law School <https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit>.
[7] Lawrence v Texas, 539 US 558 (2003).
[8] Obergefell v Hodges, 576 US 644 (2015).
[9] R v Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385 at 171 (emphasis added).
[10] “Privacy”, online: Merriam-Webster <https://www.merriam-webster.com/dictionary/privacy>.
[11] Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016, 1st Sess, 44th Parl, 2022 (third reading 20 June 2022).
[12] Nicole Wetsman, “Period and pregnancy tracking apps have bad privacy protections, report finds” (17 Aug 2022), online: The Verge <https://www.theverge.com/2022/8/17/23306570/period-tracking-apps-privacy>.