I. INTRODUCTION

I. INTRODUCTION

I. INTRODUCTION

Domestic violence is a pervasive and persistent public health crisis endangering many within our own communities, affecting about one in four women and nearly one in ten men and incurring a lifetime economic cost of $3.6 trillion. ¹ Abuse within intimate relationships primarily centers around power and control over a partner and is carried out by various means. ² While the main types of domestic abuse include physical, sexual, emotional, psychological, and financial abuse, new forms of abuse continue to evolve. ³

One new form of intimate partner abuse that is growing is technology-facilitated or technology-based abuse, where abusers utilize technology to control their partners.⁴ For example, during a twelve-month study, the Bureau of Justice Statistics found that one in four stalking victims reported being harassed with technology, with 83% being harassed by e-mail

¹ CENTERS FOR DISEASE CONTROL & PREVENTION, PREVENTING INTIMATE PARTNER VIOLENCE 1 (2019), https://www.cdc.gov/violenceprevention/pdf/ipv-factsheet508.pdf [https://perma.cc/6WMQ7W6Y] [hereinafter CDC].

² About Domestic Violence, WASH. STATE DOMESTIC VIOLENCE INFO. REFERRAL (2017), https://www.domesticviolenceinforeferral.org/about-domestic-violence [https://perma.cc/DY9TBM3G].

³ Charles Montaldo, The Different Types of Domestic Abuse, THOUGHTCO (Feb. 11, 2020), thoughtco.com/different-types-of-domestic-abuse-973311 [https://perma.cc/9SR4-UL5V].

⁴ See Hadeel Al-Alosi, Technology-Facilitated Abuse: The New Breed of Domestic Violence, CONVERSATION (Mar. 26, 2017, 10:58 PM), https://theconversation.com/technology-facilitatedabuse-the-new-breed-of-domestic-violence-74683 [https://perma.cc/M39X-LBJD]; Robin Young & Kalyani Saxena, Domestic Abusers Are Weaponizing Apps And In-Home Devices To Monitor, Intimidate Victims, WBUR (Nov. 27, 2019), https://www.wbur.org/hereandnow/2019/11/27/domesticabuse-apps-home-devices [https://perma.cc/B3UH-B2AS].

and 35% by instant messaging.⁵ In a survey of over 350 domestic violence service providers, 88% handled cases that involved the misuse of technology, such as unwanted or abusive text messages (53%) and intimidation or threats made by social media or spy cameras (39%).⁶ Technology-based abuse is challenging for victims, victim advocates, and law enforcement to prevent and for the courts and the law to provide relief for due to the unique nature of technological development. ⁷

Several approaches have been explored in recent years to address technology-based abuse within intimate relationships, including community-based educational outreach and trainings,⁸ working with the tech industry, ⁹ and criminalizing technology-based abuse. ¹⁰ However, the attempt to use the law to stop technology-abuse without stifling innovation and public access to information presents a delicate balancing question and a larger policy issue. The speed of technological advancement often puts new products into consumers’ hands before regulations can be passed to address subsequent harm from the products’ misuse, thus creating a whack-a-mole situation for lawmakers. ¹¹ When one set of laws is passed to restrict the abusive use of one product, another new product has already been released to the public.

A. Data Privacy Concerns

One area of concern with technology-based abuse that the technology community and lawmakers have, and are often at odds over, is data privacy. Legal scholars and policy experts debate over the best method to protect privacy, while others theorize that privacy protection is futile and

⁵ Bureau of Justice Statistics: Stalking, U.S. DEP’T OF JUSTICE, https://www.bjs.gov/index.cfm?ty=tp&tid=973 [https://perma.cc/YDB4-EJ6M]; NAT’L NETWORK TO END DOMESTIC VIOLENCE, TECH ABUSE: INFORMATION FROM THE FIELD 2-3 (2018), https://www.techsafety.org/s/2018_09_10-TAS-GAN-CCAW-Summary.pdf [https://perma.cc/WHL5-VCQG] [hereinafter NNEDV TECH ABUSE REPORT].

⁶ NNEDV TECH ABUSE REPORT, supra note 5, at 2-3.

⁷ Andrew King-Ries, Teens, Technology, and Cyberstalking: The Domestic Violence Wave of the Future?, 20 TEX. J. WOMEN & L. 131, 133 (2011).

⁸Program Teaches Domestic Violence Victims Safe Use of Technology, 28 CHILD. L. PRAC. 25 (2009).

⁹ Karen Levy, No Safe Haven for Victims of Digital Abuse, SLATE (Mar. 1, 2018, 4:46 PM), https://slate.com/technology/2018/03/apps-cant-stop-exes-who-use-technology-for-stalking.html [https://perma.cc/657K-W8WC].

¹⁰ Aily Shimizu, Domestic Violence in the Digital Age: Towards the Creation of A Comprehensive Cyberstalking Statute, 28 BERKELEY J. GENDER L. & JUST. 116, 120–21 (2013).

¹¹ See Kaitlin Chandler, The Times They Are A Changin’: The Music Modernization Act and the Future of Music Copyright Law, 21 TUL. J. TECH. & INTELL. PROP. 53, 55 (2019); Maya Raghu, The Use of Technology to Stalk and the Workplace, 3 FCADV: BOTTOM LINE ON DOMESTIC VIOLENCE 1, 2, http://fcadv.org/sites/default/files/BOTTOMLINE%20-%20Vol%203-Issue%201_0.pdf [https://perma.cc/D72W-XADF].

the focus should be on controlling the dissemination of data instead.¹² While the best approach to data privacy continues to be debated, new data privacy laws are emerging and rattling the data-driven tech industry, including the General Data Protection Regulation (GDPR) in the European Union and the California Consumer Privacy Act (CCPA). While the U.S. remains today without a comprehensive federal data privacy bill,¹² a growing number of states are drafting its own data privacy laws.¹⁴

B. Domestic Violence Concerns

Similar to the current state of data privacy laws in this country, domestic violence has seen its share of letdowns by the law to adequately protect survivors’ safety. The unique societal nature of domestic violence that pulls in family dynamics, emotionally-charged relationships, gender stereotypes, and intersectionality makes traditional law enforcement and criminal approaches an insufficient solution. ¹⁵ Further, the unregulated and rapidly evolving technological tools that are publicly available makes containing the spread of domestic violence difficult. The challenges in managing data privacy are magnified when domestic violence survivors are involved. ¹⁶

Due to the lack of adequate legal relief, domestic violence survivors are often left to rely on nonlegal avenues of support such as domestic violence advocacy organizations that are mostly community nonprofits or government-sponsored.¹⁷ Advocates at these organizations protect survivors largely by guiding them through the legal system, providing resources and service referrals, and devising safety plans to avoid harm from their abusers. This places a disproportionate burden to protect survivors on nonprofit advocacy groups that are often struggling to maintain sufficient

¹² Justin Brookman & G.S. Hans, Why Collection Matters: Surveillance as a De Facto Privacy Harm, CTR. FOR DEMOCRACY & TECH. (Sept. 30, 2013), https://cdt.org/insights/report-why-collection-matters-surveillance-as-a-de-facto-privacy-harm [https://perma.cc/PWF5-RNUP].

¹³ Tony Romm, Top Senate Democrats Unveil New Online Privacy Bill, Promising Tough Penalties for Data Abuse, WASH. POST (Nov. 26, 2019, 4:45 PM), https://www.washingtonpost.com/technology/2019/11/26/top-senate-democrats-unveil-new-online-privacy-bill-promising-tough-penaltiesdata-abuse [https://perma.cc/2PC9-KCHR].

¹⁴ Tim Henderson States Battle Big Tech Over Data Privacy Laws, PEW TRUSTS: STATELINE (July 31, 2019), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/07/31/states-battlebig-tech-over-data-privacy-laws [https://perma.cc/7MZA-BP95].

¹⁵ Betsy Tsai, The Trend Toward Specialized Domestic Violence Courts: Improvements on an Effective Innovation, 68 FORDHAM L. REV. 1285, 1293 (2000).

¹⁶ Why Privacy and Confidentiality Matters for Victims of Domestic & Sexual Violence, TECH. SAFETY, NAT’L NETWORK TO END DOMESTIC VIOLENCE, https://www.techsafety.org/privacymatters (last visited Apr. 9, 2020) [https://perma.cc/G5YE-HWQK].

¹⁷Elizabeth L. MacDowell, Domestic Violence and the Politics of Self-Help, 22 WM. & MARY J. WOMEN & L. 203, 220 (2016).

funding and resources and are forced to turn away survivors seeking help.¹⁸

C. Overview

This paper explores how data privacy laws can impact the way domestic violence advocacy organizations conduct safety planning with survivors. This paper also looks at how data privacy laws can lessen the burdens of domestic violence advocates to protect survivors by curtailing technology-based abuse in intimate relationships and providing a noncriminal form of legal relief. Domestic violence is a complex and nuanced matter–reflective of the complexity that gender dynamics bring into it, requiring a diverse range of legal remedies. Current domestic violence remedies provide little to no satisfactory options that can be isolated from criminal prosecution. ¹⁹ Data privacy laws can offer a potential non-criminal legal option to protect domestic violence survivors.

First, the paper analyzes the current state of domestic violence laws and how it helps and also fails to protect survivors, specifically in the area of technology-based abuse. Second, the paper looks at how data privacy laws attempt to address the harmful effects of unregulated technologies. Third, the paper explores how domestic violence survivors can use data privacy laws to protect their private information from abusive partners. The paper then looks at what future domestic violence legislations can learn from data privacy laws to protect survivors from technology-based abuse, such as by giving survivors rights to their data and a private right of action against companies that abuses their data. Finally, the paper explores how domestic violence safety planning can benefit from data privacy laws or should be adjusted to prevent technology-based abuses.

I. INTRODUCTION

A. Data Privacy Concerns

B. Domestic Violence Concerns

C. Overview

Table of Contents