Living Under Contract: An LPE Analysis of American Democracy

Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. Central to China’s privacy turn is the party-state’s use of privacy law to shore up its legitimacy amid rampant digital abuse. Through privacy law, China’s leaders have sought to interpose themselves as benevolent guardians of privacy rights against other intrusive actors—individuals, firms, and even state agencies and local governments. So framed, privacy law can enhance perceptions of state performance and potentially soften criticism of the center’s own intrusions. This Article adds to our understanding of privacy law, complicates the relationship between privacy and democracy, and points toward a general theory of authoritarian privacy.

Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the history of economic exploitation using criminal enforcement power harnessed to contract, including in the racial peonage system under Jim Crow. This Article documents this systematic underregulation through the first empirical study of legal regimes for IA contracts. To the extent that the theoretical limits of contract are not presently reflected in the common law of contract, regulatory reforms that better regulate seller and government practices might reduce the risk of exploitation.