the Future of Change

We may never know the full extent of the SolarWinds hack that infiltrated the computer systems of U.S. government agencies and is likely still operating deep within the nation’s most secret information networks. This type of intrusion undermines national security and causes unsettling disruption, leaving experts wondering how much is known about the nation’s deepest national security secrets and whether government systems are still under foreign control. The truth is, intrusions like this into our personal expressive acts online occur every day, from social media companies, search engines, and just about any website we visit. The difference is, many of us, whether we know it or not, have consented to this infiltration of some of our private information: the searches we conduct, the products we buy, the groups we join, the thoughts we have explored. When this information is used to sell us more toilet paper, we probably don’t mind all that much. But when our political identity is subject to this type of intrusion, it can lead to being fed disinformation in an effort to manipulate our beliefs and, ultimately, even our voting behavior. Knowledge that our searches and affiliations will be exposed to such intrusion might chill our willingness to seek out new connections and join a social movement, particularly one that might seek to mobilize disfavored groups or take up an unpopular cause. We have long enjoyed strong protections from government intrusion of this sort: the First Amendment protects associational activity. When the intrusion on our political identity is carried out by private actors, as in the Cambridge Analytica scandal, such activity is beyond the reach of constitutional protections. In a recent paper, Social Change and the Associational Self: Protecting the Integrity of Identity and Democracy in the Digital Age, which is forthcoming in the Penn State Law Review, I explore ways to strengthen protections for political privacy when it is threatened by private actors. Comments encouraged.