On the Right to Obscurity

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‍Introduction

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.

I. What is the Best Way to Protect Obscurity?

In earlier work, we have found it necessary to call for an outright ban on an obscurity-eviscerating tool that poses the greatest danger: facial recognition technology.[5]

We have characterized facial recognition technology as irredeemably dangerous and argued at length that normalizing even seemingly low-risk activities will fuel surveillance creep.[6] What begins with convenience, scanning our faces to unlock our phones and quickly board planes or move through lines at concerts, will, over time, lead to the widespread acceptance of high-risk practices that erode civil liberties and compromise our ability to flourish. Ultimately, in a society where facial recognition technology is ubiquitous and easily enhanced by AI-driven monitoring tools (such as automated emotion detection), we believe unprecedented, mass “smart” surveillance will extend across the public and private sectors and expose everyone to systemic and routine abuse.

Though this prospect is terrifying, it is not the only way obscurity fades. In fact, something like an obscurity-eviscerating apocalypse has already occurred, and most of us are blissfully unaware of the suffering that it has caused. In Brokering Safety, Sharma, Kadri, and Adler rigorously analyze how and why some individuals have already lost the key protections obscurity offers.[7] Their article illustrates the horror of William Gibson’s often-repeated quote about the future already being here, albeit unevenly distributed, and it is a major contribution to obscurity scholarship.[8]

Consider the plight of Ella, the pseudonym of a woman that Sharma, Kadri, and Adler interviewed for their article.[9] She turned to the police and courts for help because Nick, a former partner, was stalking her, on at least one occasion, while armed.[10] Unfortunately, neither offered adequate protection.[11] Traumatized, living in perpetual fear, and forced to rely on herself, Ella had to resort to drastic measures. She stopped using the internet, adopted a new name, moved, and changed careers.[12]

Despite the hypervigilance, Nick could still find her, and Ella couldn’t safely rebuild her life.[13] The problem, Sharma, Kadri, and Adler contend, is that the law is “complicit” in allowing data brokers to serve up victims of stalking and abuse on a silver platter.[14] These companies facilitate what they call “brokered abuse” by collecting and aggregating personal information from public records and private sources. Companies are then able to sell revealing dossiers, which can include updated addresses of where people live, work, and frequently travel, to a range of buyers for next to nothing, including Nick, who could access it all with a few clicks.[15] Even with the foreseeable harm, the law still imposes an unfair and overwhelming responsibility on people like Ella. Under a legal regime that favors “privacy self-management,” individuals have to continually check which data brokers are putting their lives in jeopardy and, without respite, submit deletion requests.[16] As Sharma, Kadri, and Adler note, this is a burdensome process because the sites can be labor-intensive to navigate, error-prone, and data brokers can refuse to comply (e.g., by citing legal exemptions or internal policies).[17] Moreover, every victory is best understood as temporary. Information deleted in one place can resurface elsewhere; new data disclosures create new targets.

Given the harms that Ella and so many others endure due to data brokers eroding their obscurity–”primary” harms, which include social isolation, re-traumatization, as well as loss of wages and professional opportunities, and “secondary” harms, related to the stress of being stuck navigating a frustrating, failing system–Sharma, Kadri, and Adler insist that the time has come to enact a “paradigm shift in privacy law” that legally protects the obscurity rights of the most vulnerable.[18] “Victims” of brokered abuse, they write, “should be able to invoke their right to obscurity with a single request and expect brokers to honor an ongoing responsibility to identify and remove all relevant information across their databases to ensure no identifying information resurfaces.”[19] To facilitate and enforce this right, they call for “legislating a centralized obscurity system.”[20]

Comparing Sharma, Kadri, and Adler’s tailored and targeted prescription with our own call for an outright ban on facial recognition in its entirety provides a useful contrast that raises foundational questions about protecting people’s obscurity, which we will explore here. First, what does it mean to have a right to obscurity? Second, how can such a right be legally enforced?

These questions are complicated because, in the U.S. legal system (and pretty much everywhere else), rights, as they are typically conceived, are not absolute. Through judicial scrutiny, the courts balance claims to one right against claims to other rights, goals, and values.[21] Sharma, Kadri, and Adler propose that (1) people have a right to obscurity; (2) victims’ obscurity rights should be protected by restoring some of their “practical obscurity” through legal duties and data subject rights; and (3) only impose “narrowly tailored” constraints on data brokers’ free speech rights.[22] Unlike our call for outright bans on all facial recognition, they stop short of arguing that we should abolish data brokers to better protect everyone’s obscurity. Instead, they support measured regulatory constraints on data brokers that would limit the commodification of personal information.[23]

As Sharma, Kadri, and Adler see it, two governmental interests justify these proposed limits on data brokers’ “expression,” even under strict scrutiny.[24] First, governments have a compelling interest in protecting victims from violence.[25] The second interest is that “data broker sites degrade democratic values,” which they note while acknowledging that “the First Amendment does not generally employ balancing.”[26] Sharma, Kadri, and Adler specifically contend that many victims of abuse are so afraid of having their names and addresses saved on voter registration lists that they “refrain from voting.”[27] This chilling effect prevents citizens from exercising the fundamental right undergirding participatory democracy. As a result, the government has a compelling interest in preventing it.[28]

In contrast to Sharma, Kadri, and Adler’s argument for a narrowly tailored fulfillment right, our call to ban facial recognition technology is a defense of an absolute prohibition that leaves no room for balancing considerations.[29] In response to critics who have claimed that outlawing facial recognition technology is too extreme because it would greatly limit the government’s ability to protect public safety in emergencies, we have offered the following rebuttal. It is too dangerous to ever grant permission, even in dire circumstances.[30] Once people are accustomed to the state of exception with facial recognition technology, they will be conditioned to accept ever more invasive, routine uses.[31] The exception will eventually devour the rule as democratic resistance to surveillance overreach is gradually, consistently, and inevitably eroded. [32]

These two approaches, protecting people’s obscurity with full-stop prohibitions and balancing measures, might be seen as in tension with each other.[33] One uses a scalpel and the other a sledgehammer. But we think they are actually complementary. In this short Essay Response, we argue that a legal right to obscurity should be implemented through a patchwork of rules rather than protected as a broad, single right.

Sharma, Kadri, and Adler’s proposal for a centralized system that allows victims to obscure their information from data brokers through a single request embodies the idea of protecting the vulnerable with a right to obscurity.[34] The aim of their proposed system is to reduce the burden placed on high-risk individuals and delegate more responsibility to data brokers.[35] After all, as Sharma, Kadria, and Adler point out, these companies are better positioned to make sensitive information harder to find, and their entire business model is predicated on weakening obscurity.[36]

Sharma, Kadri, and Adler’s analysis adds to the fundamentals of obscurity scholarship a normative answer to the question of who should bear the ongoing costs required for people to maintain a minimal viable level of practical obscurity. They make a convincing case that the victims of data broker abuse have been wrongfully forced into an untenable, miserable state of having to constantly anticipate danger , and that it would be unjust for them to bear the cost of rectifying the situation.[37] As they write, “Placing the burden of identifying and removing indirect data on brokers is both practical and justified.”[38] As we consider possible legal reforms to protect obscurity rights, the question of how to prevent the law from supporting life-threatening commercial transactions must remain central.

Sharma, Kadri, and Adler’s proposal also implicitly highlights how easy it is to take obscurity for granted. People often rely on obscurity as a default privacy protection. Historically, technological and practical limitations have safeguarded obscurity more than laws.[39] As surveillance capabilities advance and barriers shrink, once implausible scenarios—such as real-time, automated identification or, possibly, eventually mind reading—have become increasingly possible.[40] As powerful new technologies become normalized, the expectation of privacy through obscurity will erode further. This accelerating dynamic underscores the urgent need to protect obscurity rights.[41]

While Sharma, Kadri, and Adler are right that the most marginalized among us will feel the brunt of vulnerability first and hardest, there is only a thin line separating safety from peril for any of us at any given moment. This is true no matter how privileged and protected we take ourselves to be. Appreciating why requires understanding the difference between small diminutions of privacy, which we call “privacy nicks” (like the slight cut of a razor), and larger, more significant intrusions, which we call “privacy chops.” The expansion of the former gives rise to the latter.

Clearly, the law has achieved some limited success in regulating privacy chops. Every state now criminalizes nonconsensual pornography in some way, and each has some kind of rule against secretly wiretapping or recording conversations. Despite this, the legal framework enables ongoing, incremental reductions in privacy—violations that amount to privacy nicks. The law often disregards these nicks because it treats their individual impact as de minimis, falling below the threshold of cognizable harm. Over time, however, the normalization of nicks (which continue to accumulate and reinforce one another) result in people collectively adapting to a pervasive surveillance environment. Tragically, people can become desensitized to almost anything if it occurs slowly and imperceptibly.[42]

Think of it this way. Today, most people are not concerned about information like their job history, voter registration, and contact details being publicly available. They perceive this specific loss of obscurity, including how easily strangers can find their home address, as merely a nick. Crucially, though, people like Ella experience the intrusion as a devastating chop that has entirely upended their lives. The limited legal concern for what Ella and others are experiencing reinforces the dangerous legal understanding that people lack a reasonable expectation of privacy in public or in “public information.”[43] Over time, the law’s adherence to this view will make life difficult for everyone. To prevent this, we can no longer afford to keep deferring the conversation about obscurity rights more generally.

II. Understanding Obscurity as a Right

Before clarifying what a right to obscurity should look like, we must explain why people have such a right. Obscurity is a form of privacy that is a necessary precondition for human dignity and autonomy.[44] Obscurity protects dignity by preventing us from being subjected to the degrading treatment that surveillance fosters, in which we become objects of suspicion.[45] Obscurity also protects dignity by sparing us the shame of public exposure of our private or quasi-private intimacies without our consent.[46]

Yet another way that obscurity protects dignity is by leaving us less vulnerable to those who exercise surveillance power. [47] The more control others have, the less autonomous we become, because we end up being less capable of self-determined action. With the loss of autonomy comes increased susceptibility to others treating us merely as a means to an end (like a tool) and not as what Immanuel Kant calls an end-in-itself (a person).[48] Of course, obscurity is not inherently dignity-preserving and can be leveraged to hide undignified behavior. But the important point to recognize is that it is hard to imagine having dignity without it.

When people think of “rights” in an American context, they often think of constitutionally provided rights concerning free expression and the exercise of religion. But we’re skeptical that a singular constitutional “right to obscurity” analogous to the U.S. Constitution’s First Amendment “right to free expression” is workable. For one thing, there’s no practical path to explicitly enshrine the right in U.S. Constitutional law. Even the broader, more politically resonant concept of “privacy” has had a rocky journey being distilled into one single powerful constitutional right in just a few state constitutions.[49] Instead, people in the United States are protected by the First, Fourth, and Fifth Amendments as well as privacy-related torts, administrative law, and federal and state data privacy and surveillance statutes.

We think a similar approach is best for obscurity, and we can borrow from international human rights law, which often conceptualizes rights in terms of what is to be protected, respected, and fulfilled.[50] More specifically, we believe that governments at the federal and state levels should respect, protect, and fulfil obscurity rights. The obligation to respect means governments must refrain from unreasonably interfering with or curtailing the enjoyment of living within zones of obscurity—the unassuming physical spaces and daily routines we engage in. The obligation to protect obscurity requires governments to prevent third parties from unreasonably reducing an individuals’ or groups’ obscurity or interfering with their ability to maintain obscurity. The obligation to fulfil means that governments must take positive action to facilitate the enjoyment of basic obscurity rights. This includes providing infrastructure and systems like those proposed by Sharma, Kadri, and Adler, but on a broader scale.

III. Critical Policy Considerations

Beyond limited privacy chop regulations, many areas of obscurity protection remain unclear or undefined. To help guide lawmakers and judges, we propose three considerations that they should focus on.

A.   Power

Obscurity, like privacy, is fundamentally about power—the potential to influence the beliefs, attitudes, or behavior of others.[51] The power to erode obscurity comes with a responsibility to protect the obscurity of the most vulnerable. Conceptually, there are at least six foundations of power: rewards, coercion, legitimacy, expertise, referents (affiliations), and information.[52] Most practical sources of surveillance power, like big tech platforms and governments, combine several (or all) forms of power to expose people. For example, platforms have “coercion” power through their capacity to design technologies that deprive people of choices in mediated environments. People can only click on the buttons they are given online. They can only enter text when the system provides them with a text entry box. The ability to design also gives platforms “rewards” power by enabling them to deliver opportunities for expression and commercial exchange. Finally, the ability to choose and modulate what substantive content people see gives platforms “information” power. These platforms can grant third parties, such as governments, legitimacy by accumulating power to spread truth or falsehoods, and referent power to signal in-group membership, like amplifying code words or dog whistles to users that government officials are “one of them.”

In short, power over obscurity can manifest in many forms, and lawmakers and judges should remain alert to each one, while emphasizing two key questions. Who holds this power? How does this power affect whether people’s information can be discovered and understood? By doing so, policymakers can focus on how incentives motivate actions that reduce obscurity and on how different actors can raise or lower the transaction costs of accessing and understanding our personal information.

B.   Dignity

As we have already noted, a right to obscurity is a necessary precondition for human dignity. But what is dignity? And how is dignity related to rights? These are complex questions because, in the philosophical literature, there are different views of what dignity is and what dignified beings morally and politically deserve. For present purposes, we note that in “Nussbaum, Kant, and the Capabilities Approach to Dignity,” Paul Formosa and Catriona Mackenzie draw an innovative and important distinction between “status dignity” and “achievement dignity.”[53] We find the distinction so helpful that we will adopt it here.

Status dignity is a binary feature.[54] You either have it because you possess certain characteristics, or you do not, because you do not possess them. The idea of status dignity dates back to Kant, and in Formosa and Mackenzie’s interpretation of him, everyone who has two characteristics, is rational and is autonomous, has status dignity.[55] From this perspective, humans have status dignity because we can use reason to understand morality in universal terms, and we act autonomously to align our intentions with universally applicable moral rules.[56]

Furthermore, as Formosa and Mackenzie emphasize, Kant can be understood as believing that status dignity is something people permanently possess and cannot lose.[57] Taken to the extreme, even humans who do terrible things retain their status dignity and fail to forfeit it.[58] Kant can be understood as taking this position because he believes that morality forbids us from ever, under any circumstance, treating a person merely as a means to an end.[59] The prohibition against torture enshrined in international humanitarian and international human rights law reflects this view that status dignity is inalienable; even people who commit heinous crimes against humanity retain it.[60]

There are other ways to understand status dignity, and Formosa and Mackenzie characterize Martha Nussbaum in her capabilities theory as developing a more Aristotelian view of what it means for humans to have it.[61] As they see it, Nussbaum’s perspective grounds status dignity in a broad range of defining human characteristics, not just our moral capacity.[62] These characteristics include the vulnerabilities of our bodies, our emotional and rational capacities, and our dependence on social relationships.[63] According to Formosa and Mackenzie, possessing these core human characteristics—such as the capacity to experience a range of emotions, the capacity to form caring relationships with others, the capacity to play, the capacity to exercise control over our environments, and the capacity for agency or “active striving—is sufficient for status dignity.[64] We are sympathetic to this position.

But what happens when circumstances prevent someone from exercising their fundamental human capabilities? For example, what if someone like Ella is prevented from living freely and finds every choice compromised: where to live and work, whom to befriend, and when to speak her mind? Based on Forma and Mackenzie’s analysis, it is reasonable to conclude that, for Nussbaum, as a victim of brokered abuse, Ella maintains her status dignity, because status dignity is permanent.[65] Tragically, though, she lacks the other type of dignity: achievement dignity. In this account, achievement dignity is understood as the ability to exercise our basic human capabilities at a level that enables us to flourish.[66] For example, Nussbaum says we need to be able to move about town freely, be secure against bodily assault, freely enter relationships, speak our minds; if we lack these freedoms, we cannot live well.[67]

Achievement dignity, therefore, is, as Formosa and Mackenzie note, contingent and a matter of degree.[68] Achievement dignity can be gained, and it also can be lost.[69] In some situations, achievement dignity may not be practically obtainable.[70] These possibilities exist because achievement dignity requires supporting conditions that enable people to actualize their human potential, such as robust laws that protect civil liberties. [71] When these conditions are missing, due to poor social or political circumstances, an injustice occurs, which Nussbaum depicts as a violation of our basic human rights.[72]

We can apply this interpretation of Nussbaum’s position to obscurity rights because it specifies a threshold condition.[73] A certain level of obscurity is a precondition for people being able to flourish as human beings and to achieve the corresponding dignity.[74] Obscurity provides the “breathing room” required for actualizing our core human capabilities.[75] For example, our emotional lives would be destabilized without sufficient obscurity.[76] Ella is living in constant fear.[77] Most people would also feel this way if ongoing, real-time, ubiquitous facial surveillance were to become normalized. Likewise, without sufficient obscurity, people, including Ella and others, would not be able to form intimate relationships, use practical reason to chart a viable path for self-development, exercise free political speech, or engage in free association.[78]

In short, then, obscurity protections should be understood as part of the basic infrastructure required for humans to live free and dignified lives.[79] Lawmakers, therefore, not only should appreciate this point but also recognize that, due to unequal distributions of power, one person’s privacy nick can be another person’s privacy chop that prevents them from obtaining the achievement dignity they deserve.

C.   Reallocation of Responsibility.

Focusing on the central human capabilities critical for human flourishing can also guide lawmakers and judges in determining how best to reallocate power by imposing, through practical and legal means, responsibility for creating or maintaining obscurity.[80] For one, it can help lawmakers target the right goals.[81] Obscurity should be protected when it can build the capacity for people to move freely without fear of retaliation, develop intimacies, participate in democratic processes, and all of the other human capabilities identified by Nussbaum that are necessary for dignity.[82]

We argue that the most responsible way to reallocate responsibility requires always keeping three things in mind.

First, powerful actors will deploy as much surveillance as is useful and profitable until someone stops them. Firms and states alike have incentives to discover, aggregate, and monetize visibility.[83] This leads to more attention, control, and revenue.[84] Expecting people to fight these incentives through atomized, ad hoc efforts is unrealistic.[85] Legal regimes should therefore shift the burden of respect and constraint onto those with instruments of visibility, such as data brokers, dominant platforms, and governments. These actors should have to justify and limit uses that threaten core human capabilities. Their obligations should include bright-line prohibitions on the most dangerous surveillance practices, proportionality and necessity tests for high-risk uses, strict limits on retaining and recombining identifying data, and a duty to prevent foreseeable harms, especially to populations that already face heightened vulnerability.

Second, normalization effects are powerful and incredibly dangerous systems that rely on people’s expectations for setting threshold limits on surveillance and democratic accountability. As we have already noted, what begins as a narrowly framed convenience can, through routinization, become infrastructure. This infrastructure fades into everyday life and seems socially acceptable. Once that shift occurs, industry and government actors will immunize themselves from scrutiny by claiming that people “should expect” constant exposure. Legal regimes that anchor privacy thresholds to shifting social expectations enable actors to engineer an increasing acceptance of pervasive, intrusive surveillance as the new normal. Instead, legal standards should be forward-looking and protective. They should ask not whether people expected a particular kind of visibility, but whether a form of visibility foreseeably corrodes dignity-essential capabilities. Such reframing denies normalization of the legally persuasive rhetorical power to justify creeping surveillance. It also makes it harder for firms and governments to rely on gradualism to evade accountability.

The bottom line is that companies and governments are incentivized to maximize the leverage of normalization effects.[86] They create technological dependencies and make dangerous practices feel so mundane that their risks become muted, if not hidden. This strategy weaponizes the Collingridge dilemma: When harms are emergent and diffuse, it becomes difficult to foresee and regulate them.[87] Once technology is entrenched, change becomes politically and economically costly.[88] Actors with concentrated power, such as Big Tech companies, have repeatedly shown that they will exploit this dynamic[89]. They deploy incremental features and frame them as benign. Later, they cite user habituation or system dependence to justify rejecting reform.

To blunt that weaponization, regulators should adopt preemptive, structural responses—rules that constrain design choices likely to erode obscurity, mandatory impact assessments before deployment of identity-amplifying technologies, and statutory sunset or review requirements for surveillance interventions. Such rules shift the default away from permissive experimentation toward precaution, implicating human capabilities—movement, association, political participation, intimate life, and the rest.

Finally, it’s important to keep scale effects in mind when allocating responsibility. Scale is not only a quantitative multiplier; it qualitatively changes the character of harm.[90] A single instance of doxxing or a single data breach can be devastating to an individual. However, when identifiability and instant searchability operate at a population scale, these features transform private vulnerabilities into systemic liabilities. Technologies like facial recognition do not simply add a surveillance capability. They make public spaces legible in ways that were previously impossible. That legibility is experienced differently across populations. For many people, aggregate visibility produces nuisances or market harms. For others, like survivors of abuse, people trafficked, protesters, journalists, and members of marginalized communities, it produces direct threats to bodily safety, liberty, and civic participation.

Scale effects should shape both substantive rules and enforcement priorities. When technologies or practices enable identification, tracking, or targeting at scale, the law should impose stricter presumptions against permissive uses. It should also require higher justification burdens from actors seeking to deploy them. Enforcement resources should also prioritize harms that are predictably amplified by scale. For example, systems that map movements across neighborhoods, services that syndicate home addresses en masse, or algorithmic tools that surface people’s sensitive histories to broad audiences seem like good places to target first. Regulatory design must also reckon with the networked nature of modern data ecosystems. Remedies should mandate interoperability or ease of use for deletions and corrections across platforms. Penalties should reflect systemic impact, not just per-record infractions. Audit and transparency regimes should be calibrated to reveal cross-platform amplification chains and not only siloed errors.

Taken together, all this would reallocate responsibility in both practical and moral ways. Normatively, responsibility should rest with those who have the power to make people visible and the capacity to remedy the harms of visibility. Practically, that means imposing bright-line prohibitions and continuous, scale-sensitive duties on dominant aggregators. It also means building public infrastructure for remediation and redress, requiring anticipatory governance through impact assessments and design constraints. Legal thresholds should be insulated from the soft power of normalization. Lawmakers and judges can only create an environment in which obscurity is not an accidental byproduct of technological limitation but a protected condition necessary for human dignity and flourishing if they align legal obligations with the realities of power, normalization, and scale.

Conclusion

In this short Essay, we have contended that the core claims in Sharma, Kadri, and Adler’s excellent article “Brokering Safety” add significant justification to the argument that the time has come to conceptualize and enforce a broad and pluralistic right to obscurity. Their call for centralized remediation and ongoing broker duties is an urgent and necessary instantiation of the right to obscurity in the context of brokered abuse, and we think it merits immediate adoption.

However, we further believe the main organizing principle for broader surveillance reform is recognizing obscurity as a legally protected right tied to human dignity and capabilities. Some threats, like ubiquitous facial recognition at scale, require bright-line prohibitions because our tendency to normalize dangerous behavior over time makes later restraint unlikely. Other threats, exemplified by brokered abuse, require the kind of targeted remedies Sharma, Kadri, and Adler propose. These approaches are complementary, and we provide lawmakers guidance by clarifying the most essential considerations: power, the preservation of dignity, and the reallocation of responsibility necessary to counter the normalization of dangerous surveillance technologies.

‍ Copyright © 2026 Woodrow Hartzog* and Evan Selinger**

*Andrew R. Randall Professor of Law, Boston University School of Law.

**Professor, Rochester Institute of Technology. The authors would like to thank Jesús Aguilar for his helpful discussions with us on obscurity and human rights.

[1].     See e.g., Woodrow Hartzog & Evan Selinger, Surveillance As Loss of Obscurity, 72 Wash. & Lee L. Rev. 1343 (2015); Woodrow Hartzog, Evan Selinger & Johanna Gunawan., Privacy Nicks: How the Law Normalizes Surveillance, 101 Wash. U. L. Rev. 717 (2024); Woodrow Hartzog, Evan Selinger, & Judy Hyojoo Rhee, Normalizing Facial Recognition and the End of Obscurity, 6 Eur. Rev. Digit. Admin. & L. 163 (2025); Woodrow Hartzog & Evan Selinger, Increasing the Transaction Costs of Harassment, 95 B.U. L. Rev. Annex 47 (2015); Evan Selinger & Woodrow Hartzog, Obscurity and Privacy, in Spaces for the Future: A Companion to Philosophy of Technology, 119 (Joseph C. Pitt & Ashley Shew eds., 2018); Woodrow Hartzog & Frederic Stutzman, The Case for Online Obscurity, 101 Calif. L. Rev. 1 (2013); Woodrow Hartzog & Frederic Stutzman, Obscurity by Design, 88 Wash. L. Rev. 385 (2013).

[2].     Id.

[3].     See, e.g., Neil Richards, Why Privacy Matters (2021); Julie E. Cohen, What Privacy Is for, 126 Harv. L. Rev. 1904 (2013).

[4].     See generally Chinmayi Sharma, Thomas Kadri & Sam Adler, Brokering Safety, 114 Calif. L. Rev. 478 (2026).

[5].     See generally Evan Selinger & Woodrow Hartzog, The Inconsentability of Facial Surveillance, 66 Loy. L. Rev. 33 (2020); Evan Selinger & Woodrow Hartzog, What Happens when Employers Can Read Your Facial Expressions?, N.Y. Times (Oct. 17, 2019), https://www.nytimes.com/2019/10/17/opinion/facial-recognition-ban.html [https://perma.cc/QU3V-6HYE]; Woodrow Hartzog & Evan Selinger, Facial Recognition Is the Perfect Tool for Oppression, Medium (Aug. 2, 2018), https://medium.com/s/story/facial-recognition-is-the-perfect-tool-for-oppression-bc2a08f0fe66 [https://perma.cc/D77A-BNG9]; Woodrow Hartzog & Evan Selinger, Why You Can No Longer Get Lost in a Crowd, N.Y. Times (April 17, 2019), https://www.nytimes.com/2019/04/17/opinion/data-privacy.html [https://perma.cc/9QQ2-9N4J].

[6].     Id.

[7].     See generally Chinmayi Sharma, Thomas Kadri & Sam Adler, Brokering Safety, 114 Calif. L. Rev. 478(2026).

[8].     See generally William Gibson, Welcome to ‘Disneyland With the Death Penalty’, Wired (Apr. 1, 1993),  https://www.wired.com/1993/04/gibson-2/ [https://perma.cc/SD8K-J5TR].

          [9].     Sharma, supra note 7, at 3.

[10].     Id.

[11].     Id.

[12].     Id.

[13].     Id.

[14].     Id. at 3-6.

[15].     Id. at 10-11.

[16].     See generally Daniel Solove, Introduction: Privacy Self-Management and the Consent Dilemma, 126 Harv. L. Rev. 1880 (2013); Daniel Solove & Woodrow Hartzog, Kafka in the Age of AI and the Futility of Privacy as Control, 104 B.U. L. Rev. 1021 (2024); Neil Richards & Woodrow Hartzog, The Pathologies of Digital Consent, 96 Wash. U. L. Rev. 1461 (2019); Woodrow Hartzog, The Case Against Idealising Control, 4 Eur. Data Prot. L. Rev. 423 (2018). For a deeper exploration of the ways in which law has failed to protect intimate privacy and failed to protect people (most commonly women) from harassment, see Danielle Citron, Hate Crimes in Cyberspace (2014); Danielle Citron, The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age (2022).

[17].     See Sharma, supra note 7, at 13.

[18].     Id. at 14-15.

[19].     Id. at 6.

[20].     Id. at 17.

[21].     See generally Kent Greenawalt, Policy, Rights, and Judicial Decision, 11 Ga. L. Rev. 991 (1977); Rebecca L. Brown, Judicial Supremacy and Taking Conflicting Rights Seriously, 58 Wm. & Mary L. Rev. 1433 (April 2017).

[22].     See generally Sharma, supra note 7.

[23].     Id.

[24].     Id.

[25].     See Sharma, supra note 7, at 16.

[26].     Id. at 47.

[27].     Id. at 3.

[28].     Id. at 40.

[29].     See Selinger & Hartzog, supra note 5.

[30].     See id.

        [31].     Woodrow Hartzog, Evan Sellinger & Johanna Gunawan, Privacy Nicks: How the Law Normalizes Surveillance, 101 Wash. U. L. Rev. 717 (2024).

[32].     See generally id.

[33].     See Sharma, supra note 7, at 43.

[34].     Id. at 21-22.

[35].     Id. at 19.

[36].     Id.

[37].     Id. at 17.

[38].     Id. at 37.

        [39].     Neil Richards & Woodrow Hartzog, Privacy’s Trust Gap: A Review, 126 Yale L. J. 1180 (2017).

[40].     Seesupra note 3.

[41].     See Hartzog et al., supra note 32; see also Hartzog, Selinger, & Rhee, supra note 3.

[42].     Id.

        [43].     Woodrow Hartzog, The Public Information Fallacy, 99 B.U. L. Rev. 459 (2019).

        [44].     Evan Selinger & Woodrow Hartzog, Obscurity and Privacy , in Spaces for the Future: A Companion to Philosophy of Technology (Joseph C. Pitt & Ashley Shew ed., 2016).

[45].     See Woodrow Hartzog & Evan Selinger, Why You Can No Longer Get Lost in the

Crowd, N.Y. TIMES (Apr. 17, 2019), https://www.nytimes.com/2019/04/17/opinion/

data-privacy.html [https://perma.cc/9QQ2-9N4J].

[46].     See Woodrow Hartzog, Body Cameras and the Path to Redeem Privacy Law, 96 N.C. L. Rev. 1257, 1259 (2018).

[47].     Id. at 1271.

[48].     See generally Immanuel Kant, Groundwork of the Metaphysics of Morals (Mary Gregor & Jens Timmermann eds. & trans., Cambridge Univ. Press rev. ed. 2012).

[49].     See Universal Declaration of Human Rights art. 12, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948); see also International Covenant on Civil and Political Rights art. 17, Dec. 16, 1966, 999 U.N.T.S. 171; see also Charter of Fundamental Rights of the European Union art. 8, 2012 O.J. (C 326) 391.

[50].     See generally International Human Rights Law, U.N., https://www.ohchr.org/en/instruments-and-mechanisms/international-human-rights-law (last visited Feb. 10, 2026) [https://perma.cc/G359-K3Z9].

[51].     See John R.P. French & Bertram H Raven, The Bases of Social Powerin Studies in Social Power150–167 (1959); Robert Dahl, The Concept of Power, 2 Behav. Sci. 201 (1957); Mark Haugaard, The Four Dimensions of Power: Conflict and Democracy, 14 J. Pol. Power 153 (2021); Arash Abizadeh, The Grammar of Social Power: Power-to, Power-with, Power-despite and Power-over, 71 Pol. Studies 3(2023); Mary Kovach, Leader Influence: A Research Review of French & Raven’s (1959) Power Dynamics, 13 J.Values-Based Leadership Article 15 (2020), https://scholar.valpo.edu/cgi/viewcontent.cgi?article=1312&context=jvbl [https://perma.cc/Q6AE-TYVE]. For more information the conforming power of surveillance, see Jonathon Penney, Chilling Effects: Repression, Conformity, and Power in the Digital Age (2025).

[52].     Id.

[53].     See Paul Formosa & Catriona Mackenzie, Nussbaum, Kant, and the Capabilities Approach to Dignity, 17 Ethical Theory Moral Prac. 875 (2014).

[54].     Id.

[55].     Id.

[56].     Id.

[57].     Id.

[58].     Id.

[59].     Id.

[60].     Seesupra note 50.

[61].     See Formosa & Mackenzie, supra note 53.

[62].     Id.

[63].     Id.

[64].     Id.

[65].     See Formosa & Mackenzie, supra note 53.

[66].     See Formosa & Mackenzie, supra note 53.

[67].     Id.

[68].     Id. at 3.

[69].     Id.

[70].     Id.

[71].     See Formosa & Mackenzie, supra note 53.

[72].     Id.

[73].     Id.

[74].     Id.

[75].     Id.

[76].     Id.

[77].     See Sharma, supra note 7, at 3.

[78].     Id.

[79].     See Brett Frischmann, Infrastructure: The Social Value of Shared Resources; Elettra Bietti, Data is Infrastructure, 26 Theoretical Inquiries L. 55 (2025); Julie Cohen, Infrastructuring the Digital Public Sphere, 25 Yale J.L. & Tech. (Special Issue) 1 (2023).

[80].     See generally Raymond H. Brescia, Social Change and the Associational Self: Protecting the Integrity of Identity and Democracy in the Digital Age, 125 Penn St. L. Rev. 773 (2021).

[81].     Id.

        [82].     Martha C. Nussbaum, Human Rights and Human Capabilities, 20 Harv. Hum. Rts. J. 21, 24–25 (2020).

[83].     See generally Sharma, supra note 7.

[84].     Id.

[85].     Id.

        [86].     Daniel J. Solove, Privacy in Authoritarian Times: Surveillance Capitalism and Government Surveillance, 67 B.C. L. Rev. 51, 53, 55 (2026).

        [87].     Janne Rantala, What Is the Collingridge Dilemma?, Demos Helsinki (Mar. 8, 2024), https://demoshelsinki.fi/what-is-the-collingridge-dilemma-tech-policy/ [https://perma.cc/8RT8-BHFS].

[88].     Id.

[89].     See Solove, supra note 86, at 74.

[90].     See Mark. P. Mckenna & Woodrow Hartzog, Taking Scale Seriously in Technology Law, 61 Wake Forest L. Rev. (forthcoming 2026).