Collective action is a recurring theme in this class - a solution to many of the discussed assaults on privacy is for people to get together and collectively change their behavior. One method for instigating collective action is education. Unfortunately, privacy advocates have been unsuccessful at convincing people to change their behavior by means such as demonstrating RFID hacks, or pointing out holes in website privacy policies. Another method, the law, has been little help. Industry groups have captured the legislature, and the government promises security in exchange for access to the public's private data. The inevitable conclusion is that privacy faces an uphill battle, and needs new ideas.

One place to look for new ways to encourage collective action are the successes of similarly situated social movements. The animal rights movement faces similar obstacles as privacy. Industry has also captured the legislature. Factory farmers and big pharma play on fear of terrorism and tainted food, even convincing the senate to pass the controversial Animal Terrorism Enterprise Act unanimously.

Privacy and animal rights also share one important advantage. People fundamentally believe in privacy, and people fundamentally believe in treating animals humanely. Privacy advocates would be well served to learn from the animal rights movement's legal strategy of the past ten years, which capitalized on its advantage in the public's fundamental beliefs by bringing the issue to the people.

A new trick: ballot initiatives

In the 1990's, the animal rights movement focused a large amount of resources on a strategic litigation to get the USDA to promulgate rules protecting lab rats, mice, and birds under the Animal Welfare Act (AWA). After a decade-long legal battle, the DC Circuit ruled against the agency, forcing it to settle. In response to that decision, Congress promptly overruled the court by amending the AWA so that it would not apply to rats, mice, and birds. By winning, the animal rights activists had lost.

Seemingly in response, the animal rights movement immediately focused more of its resources on another strategy: ballot initiatives. The strategy began in Florida, with a constitutional amendment targeting the banning of gestation crates, which are 7' by 2' stalls in which reproducing sows are kept for most of their adult lives. The initiative proposed an amendment to the state constitution to make it unlawful to detain a pregnant sow in such a way that "she is prevented from turning around freely." The initiative passed 55% to 45%.

At first glance, Florida seems a puzzling place to spend 1.2 million dollars to ban gestation crates. At the time, only two farms gestation crates, and the state was in the bottom half of pork production. However, the rationale seemed to be that it would serve as a testing ground for public opinion in a state where the movement was unlikely to face push back from an entrenched farming industry.

The animal rights movement has gotten bolder with its success. In 2008 it spent 7.5 million on a ballot initiative to introduce language requiring that calves raised for veal, egg-laying hens, and pregnant pigs be confined only in ways that allow these animals to lie down, stand up, fully extend their limbs, and turn around freely, effectively banning battery cages in egg production. This is notable because California is one of the top 5 egg producing states in the US, and so the initiative faced heavy opposition by the industry. Animal rights activists may set their sights on Ohio next, another top 5 egg producing state.

Lessons learned from the animal rights movement

The animal rights movement's ballot initiative strategy seems to follow two principles which may be applied broadly. First, the language used must be simple, reasonable, and play towards the advantage in public opinion. For example, the animal rights movement chose language – "the animal must be able to stretch its limbs and turn around" – which seems reasonable and which plays directly to the public's belief in humane treatment. Language such as "farmers are forbidden from using battery cages in egg production" does neither and would have been a likely loser. Second, the strategy plays to the long game: the end goals of the animal rights movement go far beyond battery cages and veal crates, yet the movement looks to codify perceived gains in public opinion as they occur, instead of trying to push beyond what the public perceives as reasonable.

Following these principles has at least two benefits. First, codifying changes in public opinion reinforces them, shifting the mores of the topic. Over time, what the ballot initiative made illegal may soon seem to be per-se unreasonable as well. The change in law can shift the public opinion, making further goals seem less radical then they were before.

Second, the ballot initiative creates discourse surrounding the issue, bringing it to the forefront of people's minds. Sometimes, despite activists' best efforts, the harms of an issue are not perceived and the attempts at education are ignored. When the issue is up for a ballot initiative, voters confront it in the newspaper or on TV, and may further self-educate in preparation for voting day. When the initiative is well crafted and reasonable, the created dichotomy may allow people to identify with the movement, where before they had no opinion, or thought the movement too radical.

An example: Opt-In provisions

An example of how to apply these principles to privacy may be illustrative. Currently, banks in the United States can be prevented from selling personal data through an consumer initiated opt-out process consistent with the Fair Credit Reporting Act and Gramm-Leach-Bliley Act. Consumer and privacy advocates prefer an opt-in requirement where personal information cannot be sold absent specific consumer consent. Though there are some murmurs about the inevitability of opt-in federal legislation, newspapers and technology companies will be opposed to it, and, if history holds, the industry groups will carry the day. If this is the case, carefully proposed ballot initiatives could take advantage of public opinion to challenge the industry groups on the state level and try to build momentum and support for further privacy aims.

• A very interesting draft. I think you owe us a more complete analysis of the animal rights movement's politics: most people think of animal rights as an area where the extremes have been reinforced and the adversaries have benefited from the perception of the movement's extremism. I don't disagree with you that there is a shift going on, but precisely because it is a shift, it might be worth spending a little more time showing how the shift is occurring. You are also closely relating the success to a particular approach, state legislative ballot initiatives, which are not always available, and which are not going to be easy to use, in particular, in relation to privacy concerns with federally-regulated businesses. So a further discussion of the ways in which your political strategy can be conducted by other means might be useful.

Justin, this was an edifying read. Three points: First, to piggyback off Eben's point about availability, I'll add my skepticism about the mechanism outside of a few states. California is, at least as far as I know, notorious for its ballot initiative system and the response it generates. In recent elections gay marriage related ballot initiatives in many states have generated a lot of headlines. But are ballot initiatives effective in every state? To be honest, I don't think New York state's ballot initiatives inspire nearly as much passion as they seem to do elsewhere. Then again that maybe because New York State's wonderfully corrupt government has eviscerated the mechanism. I don't know.

Second, Eben, aren't consumer protection laws typically state level legislation? Would that be a possible vehicle for pushing the privacy envelope at a local level?

Third, Justin, great point about simple language. Legalese is an incredibly frustrating barrier for non-lawyers. That being said, I'm curious if there's been subsequent litigation in states where some of these animal rights initiatives have passed in an attempt to define around the language of the initiative, as lawyers and their clients are so often wont to do. This to me seems to be the achilles heel of any call for plain language in the law - "plain" language is often subject to brutal torture at the hands of common law judges.

-- RazaPanjwani - 11 Aug 2009