VIII. WHERE DATA PRIVACY PROTECTION LAWS CAN HELP DOMESTIC VIOLENCE SURVIVORS

VIII. WHERE DATA PRIVACY PROTECTION LAWS CAN HELP DOMESTIC VIOLENCE SURVIVORS

VIII. WHERE DATA PRIVACY PROTECTION LAWS CAN HELP DOMESTIC VIOLENCE SURVIVORS

Data privacy laws can reduce the risk of another Remsburg. While personal information can never be completely wiped from the internet, data privacy laws can provide an option for survivors to take back some of their information from their abusers. The majority of domestic violence survivors are women; thus, the majority of consumer data floating in the data market belongs to women. This reality is attributed to the higher likelihood for women to shop online and to voluntarily share information on social media or for frequent buyer programs. ²⁰⁴ The GDPR and the CCPA present an opportunity to correct the gendered consequences of unregulated data collection and reduce the risk of danger to survivors whereby survivors would have a method to protect themselves by controlling their private information. While existing laws do not provide direct relief for survivors, they are small but valuable steps for a survivor to reclaim control of their life. Additionally, large penalties for businesses would likely

¹⁹⁷ Id.

¹⁹⁸Id.

¹⁹⁹ Melissa Santos, Why WA’s Data-Privacy Bill Might Not Go Far Enough, CROSSCUT (Mar. 21, 2019), https://crosscut.com/2019/03/why-was-data-privacy-bill-might-not-go-far-enough [https://perma.cc/6KRE-AEPK].

²⁰⁰ Id.

²⁰¹ *Id. *

²⁰² *Id. *

²⁰³ *Id. *

²⁰⁴ Bartow, supra note 126, at 642–43.

make lax data retention practices a thing of the past, including for a survivor’s data. Data privacy laws can help domestic violence survivors by (1) shifting the burden to protect data to private businesses; (2) imposing high penalties for data privacy violations specific to survivors; (3) creating a private right of action against domestic violence; and (4) passing domestic violence-specific privacy laws.

A. Shift the Burden to Protect Data to Private Businesses

First, putting the onus on businesses to take care of consumer data can alleviate the burdens put on overworked and underfunded grassroots domestic violence advocacy organizations to protect a survivor’s personal online information. Data privacy laws would not replace advocates from having to teach survivors best practices for staying safe online. However, the fear of having online personal data potentially fall into the hands of an abuser is reduced by knowing there is an additional protective layer and another partner who can protect a survivor’s safety.

For example, if a survivor wants to create an online shopping account with a retailer, an advocate can advise them on how to create an account safely by providing the minimum amount of personal information or by providing an alternative email, contact information, and shipping address. If the retailer experiences a data breach, an advocate will need to work with the survivor to timely cancel their account and its associated credit card or email address and ensure that the survivor does not re-use the same information or credit card. Additionally, the advocate may need to teach the survivor to look for irregularities in their financial records on a regular basis, or unexpected packages that are mailed to their home address. While these steps are no different from what a normal consumer would do under similar circumstances, a survivor and their advocate must be extra vigilant about covering their data footprints because the stakes for them are higher. Data privacy laws can limit the amount and types of consumer data that retailers can hold and can incentivize retailers to create stronger barriers against data breaches. Therefore, by reducing the unnecessary flow of personal information and the risk of data breaches, data privacy laws can remove one less item for survivors and their advocates to focus their energy and anxieties on.

B. Impose High Penalties for Data Privacy Violation Specific to Survivors

Second, amendments to data privacy laws could impose a higher standard of care or penalties if a business knowingly collects data from vulnerable people such as survivors of domestic violence. Future consumer data privacy laws could also include a separate procedure for how businesses treat and maintain data for vulnerable populations.

Alex Alben, Washington State’s Chief Privacy Officer, notes that “victims of harassment and stalking need more overt policy and protection to prevent abuse of technologies that enable such behaviors.”²⁰⁵ In addition, Washington law places additional obligations on survivors’ landlords such as not discriminating on the basis of domestic violence status and keeping survivors’ statuses and documents confidential, particularly if the survivor is required to show evidence of their status to the landlord. Similarly, if a survivor were to disclose their domestic violence status to a business during their request to access and/or delete their data, the business could be held to a higher standard to keep a survivor’s status and general data confidential. If not, businesses would be subjected to a higher penalty or a private right of action, such as negligence – a cause of action landlords are subject to already. Such a scheme could work in Washington because its purpose is in line with the legislative intent to provide “the maximum protection from abuse which the law and those who enforce the law can provide.”²⁰⁶

C. Create a Private Right of Action Against Domestic Violence

Third, data privacy laws can help domestic violence survivors because they create a private right of action against domestic violence. A private right of action for survivors can help shift the discourse on domestic violence away from the criminal justice system and towards alternative forms of relief, such as the tort regime. This shift can then lead to broader and more inclusive legal options for survivors to obtain meaningful relief that fits their circumstances.

1) Criminalization of Domestic Violence

Domestic violence has been treated primarily as a criminal matter ever since the feminist social movements in the 1970s protested against the lack of police intervention for violence in homes. ²⁰⁷ Although civil protection orders were originally designed to be an alternative to criminal

²⁰⁵ Alex Alben, Privacy, Freedom, and Technology – or “How Did We Get into This Mess?”, 42 SEATTLE U. L. REV. 1043, 1055 (2019).

²⁰⁶ WASH. REV. CODE § 10.99.010 (1979).

²⁰⁷ SUK, supra note 44, at 13.

enforcement, violations of civil protection orders are still treated as a criminal offense. ²⁰⁸ Additionally, uncooperative victims must be arrested together with their abuser under mandatory arrest laws. ²⁰⁹ Relegating domestic violence remedies solely through the criminal justice system does not always work to protect victims. ²¹⁰

The criminalization of domestic violence has failed to properly protect the majority of victims. One criticism is that the criminalization of domestic violence forces victims to interact with the criminal justice system against their will. ²¹¹ This reality is particularly felt in jurisdictions that have mandatory arrest laws for domestic violence. ²¹² Effectively, these laws take away a victim’s autonomy and power to make decisions and gives it to law enforcement officers, prosecutors, and judges.²¹³ These laws also ignore the historic, social, and political differences in lived experiences between domestic violence survivors based on race, gender, sexual orientation, religion, immigration status, language proficiency, maritalstatus, disability, etc.²¹⁴ The inability of the criminal justice system to acknowledge and incorporate these differences means the criminalization of domestic violence may actually put survivors’ lives in greater danger.²¹⁵

Furthermore, a victim may not want their abuser to be criminally prosecuted. Some reasons include concerns about increased retaliation from their abusers, fear of getting arrested, fear of confronting their abuser in court, expenses in time and money to prosecute the abuser, the loss of a household income source, and, for some, the loss of a parent to their children. ²¹⁶

Particularly, the experiences of non-white, non-affluent, and non-citizen victims make a strong argument for why the criminal justice system should not be the sole avenue available for domestic abuse. ²¹⁷ The history

²⁰⁸ Id. at 15.

²⁰⁹ WASH. REV. CODE § 10.31.100 (2019).

²¹⁰ See SUK, supra note 44, at 16; see also KEITH GUZUK, ARRESTING ABUSE: MANDATORY LEGAL INTERVENTIONS, POWER, AND INTIMATE ABUSERS 9-10 (2009); GOODMARK, supra note 34, at 22.

²¹¹ GUZUK, supra note 210, at 9-10.

²¹² *Id. *

²¹³ Id.

²¹⁴ See Natalie J. Sokoloff & Ida Dupont, Domestic Violence at the Intersections of Race, Class, and Gender: Challenges and Contributions to Understanding Violence Against Marginalized Women in Diverse Communities, 11 VIOLENCE AGAINST WOMEN 38, 55-56 (2005); Geneva Brown, Ain’t I A Victim? The Intersectionality of Race, Class, and Gender in Domestic Violence and the Courtroom, 19 CARDOZO J.L. & GENDER 146, 167-69 (2012).

²¹⁵ GOODMARK, supra note 34, at 75.

²¹⁶ *Id. *

²¹⁷ Id. at 4.

of brutality and distrust with law enforcement amongst BIPOC²¹⁸ communities make victims of color less likely to contact or cooperate with the police, which could lead to the victim’s own arrest.²¹⁹ Victims with nonwhite partners are also cognizant of the possibility that reporting the abuse would lead to putting another BIPOC individual in the prison system.²²⁰

Immigrant survivors have the added challenges of language and cultural barriers. These barriers prevent them from understanding the legal system, leaving toxic relationships due to cultural or community pressures, or knowing when and who to ask for help. ²²¹ Undocumented immigrants also have to consider the risk of deportation and separation of their families if they come in contact with law enforcement and the legal system. ²²² Therefore, maintaining the criminal justice system as the sole solution to domestic violence can reinforce and exacerbate the marginalization of survivors from system-impacted communities.²²³

2) Tort Action for Domestic Violence

An area of growing discussion for domestic violence relief is providing tort actions for domestic violence survivors. While U.S. v. Morrison constitutionally barred a federal civil right of action for gender violence, individual jurisdictions can still provide non-criminal solutions for domestic violence survivors. Civil tort suits can provide a form of relief such as monetary damages, declarative relief, or injunctions that can serve as an alternative to incarceration. ²²⁴

There are several arguments for using the tort system as a remedy for domestic violence. These arguments include being able to provide survivors the following: a true alternative to the criminal justice system; ²²⁵ increased control of the direction of the litigation; ²²⁶ a lower standard of

²¹⁸ See Sandra E. Garcia, Where Did BIPOC Come From?, NY TIMES (June 17, 2020), https://www.nytimes.com/article/what-is-bipoc.html [https://perma.cc/AEM2-ZKQJ]. The term “BIPOC” (Black, Indigenous, and people of color) is used to acknowledge the unique racial experience of Black and Indigenous people in the United States, particularly with regards to the country’s systemic history of policing and incarceration.

²¹⁹ Id. at 72.

²²⁰ Id. at 131.

²²¹ Id. at 75.

²²² Id.

²²³ Id.

²²⁴ Barbara J. Hart & Erika A. Sussman,* Civil Tort Suits and Economic Justice for Battered Women*, CTR FOR SURVIVOR AGENCY & JUSTICE, https://csaj.org/document-library/CivilTorts_EconomicJustice.pdf [https://perma.cc/JE9K-PCWA].

²²⁵ Camille Carey, Domestic Violence Torts: Righting A Civil Wrong, 62 U. KAN. L. REV. 695, 745 (2014).

²²⁶ Id. at 746–47.

proof for a wider range of injuries, which may result in litigation success; ²²⁷ and a way to level the power dynamic between the survivor and the abuser and judicial officers.²²⁸

However, tort litigation as a solution for domestic violence has been criticized for its difficulties in measuring emotional and economic abuse. Furthermore, the expensive nature of tort suits excludes meaningful participation from low-income survivors. ²²⁹ The majority of general tort suits are paid out through marital assets or insurance, which typically excludes coverage for domestic violence (often categorized as an “intentional tort”). ²³⁰ In addition, many federally funded legal services that serve lowincome clients are restricted from engaging in “fee generating” claims, which include tort suits for monetary damages. ²³¹

California specifically provides a statutory “tort of domestic violence” against an abuser if (1) the plaintiff’s injuries resulted from abuse, and (2) the abuse was committed by someone in a relationship with the plaintiff. ²³² Statutory recovery includes “general damages, special damages, and punitive damages” as well as “equitable relief, an injunction, costs, and any other relief that the court deems proper, including reasonable attorney’s fees.”²³³

3) Need for Broad and Diverse Legal Options for Survivors

Due to the criminal justice system’s failure to adequately address the complexities of domestic violence survivors, advocates and scholars have argued for a broader range of legal options that allows a survivor to decide what remedy works best for their situation. ²³⁴ The lack of feasible legal options for survivors drives them to depend on domestic violence advocacy organizations for non-legal recourses such as safety plans to protect themselves. ²³⁵ A growing number of survivors are turning to the civil system for legal remedies as seen in the development of domestic violence tort claims. ²³⁶ While tort claims may not be a feasible or ideal option for

²²⁷ Id. at 747.

²²⁸ Id.

²²⁹ Id. 755–56.

²³⁰ Id. at 729.

²³¹ Id. at 732.

²³² CAL. CIV. CODE § 1708.6 (West. 2003).

²³³ Carey, supra note 225, at 716–17.

²³⁴ GOODMARK, supra note 34, at 151.

²³⁵ Id. (“Rates of violence against women have not dramatically declined since the inception of legal reforms; they have, instead, kept pace with the declining crime rate in the United States. The only group that is markedly safer as a result of 40 years of domestic violence and policy is men. Fewer men are being killed by their abused partners today, likely because other options, like shelter, social services, and legal services, are available to their partners.”)

²³⁶ Id. at 140.

all domestic violence survivors, they provide a meaningful option for those who can benefit from them as opposed to being automatically forced into the criminal justice system when their partner hurts them. ²³⁷ Data privacy laws will similarly provide another remedy for individuals who want to, or need to, avoid the criminal justice system. Creative legal advocacy is necessary to address not just the unmet needs of complex and vulnerable populations, but to address technology-based abuse and the absence of government intervention to mitigate such abuse against intimate partners. ²³⁸

D. Pass Domestic Violence Specific Data Privacy Laws.

Finally, if no additional remedies can be drawn from existing data privacy laws to protect survivors of domestic violence, another option is to create new domestic violence specific data privacy statutes. These laws will likely come out of states like Washington and California, which already have expansive domestic violence and tech-abuse statutes.²³⁹ Local policymakers can gain inspiration from the GDPR or the CCPA when crafting new domestic violence specific data privacy laws by using broad definitions of “data brokers” and “consumers” in order to expand the statute’s reach over protected and liable individuals. ²⁴⁰ Survivors can hold a business responsible for damages rather than the abuser when an abuser misuses the survivor’s information as a result of the business’s actions. Many survivors are reluctant to bring legal action against their abusers due to the complexity of domestic violence cases. Perhaps survivors would be more persuaded to bring an action against a third party that enabled their abuse in order to be made whole or prevent such abuse from happening to another person.