Download This PaperAuthoritarian Privacy
University of Chicago Law Review, Vol. 91, 2024
Georgetown University Law Center Research Paper No. Forthcoming
71 Pages Posted: 23 Feb 2023 Last revised: 16 Mar 2024
Date Written: February 17, 2023
Abstract
Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. To explain how this came to be, the Article first turns to several top-down objectives often said to motivate China’s privacy laws: advancing its digital economy, expanding its global influence, and protecting its national security. Although each has been a factor in China’s turn to privacy law, even together they tell only a partial story.
Central to China’s privacy turn is the party-state’s use of privacy law to shore up its legitimacy amid rampant digital abuse. China’s whiplashed transition into the digital age has given rise to significant vulnerabilities and dependencies for ordinary citizens. Through privacy law, China’s leaders have sought to interpose themselves as benevolent guardians of privacy rights against other intrusive actors—individuals, firms, even state agencies and local governments. So framed, privacy law can enhance perceptions of state performance and potentially soften criticism of the center’s own intrusions. China did not enact privacy law in spite of its surveillance state; it embraced privacy law in order to maintain it. The Article adds to our understanding of privacy law, complicates the conceptual relationship between privacy and democracy, and points towards a general theory of authoritarian privacy.
Keywords: privacy, comparative law, authoritarian legality, Chinese law, law and technology
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