Woodrow Hartzog (Boston U Law) and Evan Selinger (Rochester Institute Technology Philosophy) have posted “On the Right to Obscurity” (17 California Law Review Online 23 (2026)) on SSRN. Here is the abstract:
U.S. privacy law has largely failed to protect our most common yet also our most underappreciated form of privacy: the practical obscurity that allows us to live freely and with dignity. Obscurity, which is the state of protection that arises when personal information is difficult for some people to obtain or correctly interpret, provides the breathing room we need pursue self-development or establish healthy boundaries with others.
Around the world, there is tremendous anxiety about surveillance because new digital technologies and systems have drastically reduced obscurity. In this Essay, which reflects on Chinmayi Sharma, Thomas E. Kadri, and Sam Adler’s thoughtful and urgent articleBrokering Safety, we argue in favor of a legally protected right to obscurity that is tied to human dignity and capabilities.
Appealing to this organizing principle can help lawmakers better mitigate the ongoing obscurity harms that people suffer every day. Indeed, a right to obscurity grounded in human dignity and capabilities can anchor a robust approach to surveillance reform that includes interventions, ranging from procedural rules to outright bans. Crucially, it can offer robust justification for bespoke interventions, such as one proposed inBrokering Safety, that protects our most ordinary and undervalued form of privacy.