Putting People Power into US Privacy Law: Learning from the Past to Light the Path to True Privacy Protection to Advance Rights and Democracy in the Age of Artificial Intelligence

Abstract

With the current political climate and advances in artificial intelligence (AI), the stakes are higher than ever to advance new laws that make technology work for the people and promote access, equity, and justice in the digital age. When we were last at a similar historical crossroads in the early 1970s—at the cusp of massive technological change with the rise of computerization and fights for the future of this country raging across movement issues—the people of California passed the constitutional right to privacy. It is the last truly comprehensive privacy law passed in the United States. This modern right to privacy, enacted in 1972, addresses both autonomy privacy and informational privacy and protects against privacy invasions by both government and business. At its core is an allocation of power to the people to control how technological advances can invade private lives and undermine fundamental rights. But, by the mid-1970s, political energy for similar robust substantive privacy protections that limited information collection, use, and disclosure had been undermined. United States privacy protections had been pummeled into weak procedural due process frameworks, like notice and choice, that have now occupied the privacy field for decades. It is urgent to explore what we can learn from history and interrogate current US privacy law and movement power to light a path to defend existing protections and enact stronger privacy laws that can properly support rights and democracy in the AI age.