A few years ago, the CBS show 60 Minutes ran a segment about algorithmic bias. Among other things, the segment told the story of a Black man in Detroit who had been misidentified by a facial recognition algorithm as the thief who had been caught on video stealing $4,000 worth of watches. Anderson Cooper interviewed the victim, his wife, the Detroit police chief, a lawyer at Georgetown’s Center on Privacy and Technology, and a computer scientist at the National Institute of Standards and Technology (NIST). The NIST computer scientist, Patrick Grother, was interviewed because “[e]very year, more than a hundred facial recognition developers around the world send his lab prototypes of test for accuracy.” For 60 Minutes that day, Mr. Grother was the expert on these algorithms.
No offense to Mr. Grother, who I’m sure is a smart guy, but the real experts were missing. Mr. Cooper did not interview the Black women who first brought the problem of algorithmic bias in facial recognition to academic and public attention: Joy Buolamwini, Timnit Gebru, and Deborah Raji. The incident captured in just a few minutes the long history of erasing the contributions of women and of women of color in particular. NIST, which had cited Buolamwini, Gebru, and Raji in its report, got its moment in the sun but never mentioned the underlying research; the police chief got his chance to cast the wrongful arrest as an isolated mistake. The Black women who founded the field were ignored, a fact even more remarkable given that 60 Minutes researchers and producers spent time with Buolamwini in preparation! That this happened in 2021 highlights the desperate need for Meg Leta Jones’s and Amanda Levendowski’s edited volume, Feminist Cyberlaw.
With contributions from established and up-and-coming scholars, including, among others, Elizabeth Joh (UC Davis), Ngozi Okidegbe (Boston University), Hannah Bloch-Wehba (Texas A&M), Jasmine McNealy (University of Florida), Alexandra Roberts (Northeastern), and Anjali Vats (University of Pittsburg), Feminist Cyberlaw aims to inform and challenge. It informs by looking at cyberlaw issues like ownership, privacy, the First Amendment, labor, and security through a feminist lens. It challenges its readers to consider not just how feminist theory reconsiders old internet law debates, but how the work of cyberlaw over the last few decades has marginalized feminist perspectives.
In what ways have feminist perspectives been marginalized? The cyberlaw canon, which Professor Jones frames in her introduction as advocating a kind of universality and perfect equality, elided the connective tissue between cyberspace and the physical world. Feminist work, particularly feminist critiques of Science and Technology Studies, inhabits that connective tissue and, thus, gives the readers of Feminist Cyberlaw a new way of looking at technology. It gives voice to the people who may not be in the room when technology is designed but who are most definitely acted upon and act with technologies both designed for them and without them.
So, Feminist Cyberlaw gives us context. It also centers the lived experiences of women, those living with disabilities, queer people, gender variant populations, and women of color. Novelty and generativity may have been the watchwords of the cyberlaw canon, but feminist approaches to technology surface the real-world effects of innovation, law, and institutions that have never been and never will be borne equally. Notice, too, that Feminist Cyberlaw is not limited by narrowness of first wave feminism. The “feminism” in Feminist Cyberlaw is hooksian, that is, indebted to people like bell hooks, who saw recognition of the many different ways different women are subordinated by different systems of oppression, including white supremacy, heteronormativity, ableism, ageism, and more.
What I like most about Feminist Cyberlaw is its diversity of perspectives within an overarching frame. Although broadly clustered into sections on ownership, access, and governance, contributions to the volume range from intellectual property to data security, from the First Amendment to labor, from the Global South to China. The authors are law professors, practitioners, independent researchers, and community organizers. Elizabeth Joh’s chapter on the effects of eliminating a federal right to abortion in a world of ubiquitous surveillance serves as an important reminder that the Supreme Court’s decision in Dobbs v. Jackson Women’s Health does not mark a return to the pre-Roe v. Wade world, but rather places those who can get pregnant in a state of perpetual risk. Michela Meister and Karen Levy go even further in their excellent essay on what feminist lens can teach us about privacy invasions. They show that Dobbs is actually a broader case study in the ways in which women’s loss of control over their bodies is part of a broader pattern of patriarchal surveillance. Gabrielle Rejouis’s essay on taking an intersectional lens to content moderation is a welcome contribution to a content moderation literature that is too often satisfied with elite liberals’ best efforts.
I also appreciate Professor Jones’s eagerness to situate Feminist Cyberlaw in its own historical context. She places the text on the shoulders of a litany of critical scholars, many of them women, who have been challenging patriarchy, oligarchy, and heteronormativity in law and technology for decades. Julie Cohen, Danielle Keats Citron, Catherine MacKinnon, and Anita Allen deserve particular mention here. Professor Allen, who has been writing about cyberlaw broadly defined for nearly forty years, must be considered among the original canonical scholars of cyberlaw. That she is often defined—including in this text—not as canon but as an early critical voice responding to likes of John Perry Barlow and Larry Lessig (Professor Jones leaves out the late Joel Reidenberg)—is itself a testament to how academia and academic culture view the contributions of Black women. Julie Cohen has been offering polymathic articles and treatises on intellectual property and privacy for decades, as well, challenging the tech bro-y insistence that cyberspace is somehow above the law, above the physical world, and above regulation. Professor Cohen’s latest book, Between Truth and Power, is a political, legal, and economic tour through the ways law has been integral to the formation of informational capitalism’s hierarchies. Feminist Cyberlaw takes many of the broad themes of Between Truth and Power and of Professor Citron’s groundbreaking work on intimate privacy and establishes them as Feminist—with a capital F—inspirations.
By the time readers finish Feminist Cyberlaw’s economical and digestible essays, they will come away with an appreciation for traditionally marginalized voices and more questions to pursue in their own research. Feminist Cyberlaw is a call to action to build from critique to change, to use the feminist lens to develop new paths forward in the information age. Whether that means assessing the value of proposals against how they rebalance power or centering the experiences of women as the future of law and technology, Feminist Cyberlaw is a profoundly important step in a positive direction.
