An unwarranted weapon
This year alone, over 561 anti-trans bills have been introduced across the country. Seventy-nine of those bills have passed, directly affecting nearly half the states and having a chilling effect on the nation.
These laws attack trans people on multiple fronts: impeding access to necessary healthcare and accurate government-issued IDs, allowing discrimination by businesses, restricting access to basic facilities, and policing gender identity and expression in schools and public spaces.
In this edition:
- An attack on trans people
- Our digital footprints are ripe for abuse
- The wielding of the surveillance apparatus
- Enforcement is just the half of it
Late last month, my POGO colleague René Kladzyk published an investigation breaking down how, in the glaring absence of necessary data privacy regulation, surveillance technology could be used to access sensitive personal data and enforce these anti-trans bills. I connected with René to understand what abuses we may encounter down the road, and what steps the federal government can take now to prevent them.
On all fronts
The impact of state anti-trans laws is pervasive. The Movement Advancement Project, an independent think tank, is mapping the legislative assault on trans rights and how its impacts are felt on all fronts. Schools and healthcare have become primary battlegrounds, though bills targeting access to basic amenities like bathrooms are common, and “drag bans” that police gender expression have been on the rise.
“It’s difficult to make overarching statements about the nature of laws being passed that are targeting the trans community, because they are so wide ranging,” René told me. “However, there are common themes. And what we’re seeing is a coordinated effort to restrict trans people in public spaces in general.”
The surveillance apparatus
But how will this slew of anti-trans bills be enforced? The answer to that is ambiguous and complicated in practice. Privacy experts think that surveillance technology like face recognition software or location data tracking is likely to become a primary tool for enforcing these laws.
In our increasingly online world, the ways our data is being collected have dramatically increased: Think location tracking from cell phone towers, face recognition using public cameras, and student spyware on school-owned computers. Our digital footprint includes the messages we send to each other, the keywords we type into search engines, the websites we visit, and even the personal data that’s collected about us in medical and government databases.
All of this data has proven to be a valuable commodity, and not just for advertisers. A lack of federal regulation around these tools and how our personal data is collected, bought, and sold makes this data far too easily accessible and ripe for abuse by the government.
“We don’t have a national data privacy law in this country,” René told me. “The lack of such a law means that the very personal information that’s documented about us could be weaponized against us.”
Beyond the hypotheticals
Law enforcement’s use of surveillance technology and digital data is common around the country, including in many of the states that have passed these new anti-trans laws. For example, police requests for geofence warrants, which use phone data to identify people who may have visited a specific location, are on the rise. And if a judge won’t approve a warrant to track your location, police have other ways to buy your cellphone data. “We know that they are aware of these tools. We know that their job is to enforce the law. And we know that they’ve got this new law to enforce,” René explained. “It stands to reason that they’re going to be reaching in and using all the tools in their tool bag when it comes to targeting trans people.”
René details the potential specific applications of surveillance technology and digital data in enforcing the new anti-trans bills in her investigation. But it’s not just law enforcement who can access these tools. The lack of federal regulation makes it so that anyone — including school and university administrators, medical officials, or even just ordinary, private citizens — can abuse them.
“Some of the sources I spoke with have the opinion that the laws are being written specifically to encourage vigilante enforcement,” René told me.
Fear is the point
But what kind of an effect does that have on a community, when the threat of enforcement can come from other private citizens and the use of surveillance technology is so readily available?
“Surveillance technology makes the harms of this legislation even worse, because it creates a pervasive climate of fear,” René said. “Surveillance in itself is an insidious form of enforcement, because the fear of being watched leads people to police themselves and police each other.” That self-policing, what one of René’s sources calls a “chilling effect,” means the harms of these laws are often invisible and untraceable, as well as deeply demoralizing.
“That is a major harm of surveillance — trans people are forced to live in constant fear of being watched, and as a result, change the minutiae of their behavior, reframing the way they live their lives,” René explained. “That’s a profound impact that’s impossible to measure.”
Something can be done
The need for better regulation around digital privacy has been clear for years now. We are way behind where we should be in order for anyone to feel safe navigating virtual spaces, to feel confident that they’re protected against bad actors who want to weaponize their personal data against them. But given the quickly escalating attack on trans rights and the large role surveillance tech is likely to play in this attack, the need for regulation is more critical than ever.
René’s piece details the steps the federal government can take to better protect our digital privacy and protect trans lives in the process. Read up on what experts recommend by visiting the investigation on our website.
POGO has extensively reported on the dangers of unregulated collection of and access to digital data for years. To go deeper on this topic and understand the magnitude of the issue, read through our archive of work on surveillance.