Early in his prescient book, legal scholar Brescia points out a stunning irony. We all know this is the era of “surveillance capitalism,” in which the internet habitually violates our virtual space. We understand that purportedly free social media companies (a.k.a. “Digital Pinkertons”) effectively exist to co-opt and sell the private data (“political privacy”) that we inadvertently shed and surrender upon entering their sites. But few focus on the fact that this is happening because, on balance, while the law does not protect the integrity of our identity, it does protect that of the social media companies exploiting us. The result: relentless “digital abuse.” This all matters on a level far beyond that of the individual, Brescia says. For political privacy is critical to a functioning democracy, yet social media users are increasingly manhandled by third parties that analyze their online habits, texts, searches, comments, etc., to nudge them to actions they wouldn’t normally take, from buying products they don’t want, to casting self-defeating election votes. Indeed, the 2016 presidential campaign, marked by rampant misinformation, was all about manipulation via digital abuse, he posits (and might well have said about the 2024 election, if the book were written slightly later). Brescia explores in depth the different ways that “laws, norms, constitutional protections, and practices” surrounding political privacy “essentially provide immunity to those companies that have access to our digital selves [and] creates a form of moral hazard in which those same companies are largely free from oversight and responsibility.” But he does believe there’s hope if we follow the patterns of past successful civil rights movements, where there was a gradual convergence of understanding—coming from disparate groups of legislators, lawyers, academics, activists, and industry tycoons—that for democracy to thrive, it must protect and never again “extract” the teeming private selves at the heart of it.
