Dismantling the "Black Opticon": Race Equity and Online Data Privacy Regulation

February 9, 2022
Lecture by Professor Anita L. Allen of the University of Pennsylvania, co-hosted by the Penn Program on Regulation (PPR) and the Center for Technology, Innovation and Competition. Part of PPR’s 2021-2022 Lecture Series on Race and Regulation.
In the opening decades of the 21st century, popular online platforms rapidly transformed the world. These platforms have come with benefits, but at a heavy price to information privacy and data protection. African Americans online face three distinguishable but related categories of vulnerability to bias and discrimination that Prof. Allen dubs the "Black Opticon": discriminatory over-surveillance (panoptic vulnerabilities to, for example, AI-empowered facial recognition and geolocation technologies); discriminatory exclusion (ban-optic vulnerabilities to, for example, unequal access to goods, services, and public accommodations advertised or offered online); and discriminatory predation (con-optic vulnerabilities to, for example, con-jobs, scams, and exploitation relating to credit, employment, business and educational opportunities). Escaping the Black Opticon is unlikely without acknowledgement of privacy's unequal distribution and privacy law's outmoded and unduly race-neutral façade.
African Americans could benefit from race-conscious efforts to shape a more equitable digital public sphere through improved laws and legal institutions. Prof. Allen discusses the Black Opticon triad and considers whether the Virginia Consumer Data Protection Act (2021), the federal Data Protection Act (2021), and new resources for the Federal Trade Commission proposed in 2021 possibly meet imperatives of a race-conscious African American Online Equity Agenda, specifically designed to help dismantle the Black Opticon. The 2021 enacted Virginia law and the bill proposing a new federal data protection agency include civil rights and non-discrimination provisions, and the Federal Trade Commission has an impressive stated commitment to marginalized peoples within the bounds of its authority.
Nonetheless, the limited scope and pro-business orientation of the Virginia law, and barriers to follow-through on federal measures, are substantial hurdles in the road to true platform equity. The path forward requires jumping those hurdles, regulating platforms, and indeed all of the digital economy, in the interests of nondiscrimination, anti-racism, and anti-subordination.
To learn more about the Lecture Series on Race and Regulation, visit the lecture series webpage at PennReg.org/race-and-regulation. The series is co-sponsored by Penn Law’s Office of Equity and Inclusion.
For general information about the Penn Program on Regulation, including all upcoming events, visit our website at PennReg.org.