Protesting without a face: Privacy in public demonstrations

Abstract

Regimes of all stripes feel deep discomfort at being exposed to citizen scrutiny. While the democratic environment makes direct persecution of critics difficult although not impossible, governments seek more surreptitious ways to control and stifle criticism. Citizens, for their part, seek to keep open the communicative channels of expression. Thus, faced with forms of control of public discourse they devise new forms of communication or design mechanisms to either circumvent or frustrate these more surreptitious forms of control (Brunton & Nissenbaum, 2015, p. 1).Protests are, precisely, in this situation. Through their intense regulation, states have sought ways to contour the once disruptive character of public appearances to the point of transforming them in some cases-as protests have not been deprived of all their political significance-into allegorical events (King, 2013). Protests, some have claimed, have been institutionalized in terms of their form, and of where and at what the time of day they can take place (McCarthy & McPhail, 1998). Since legal doctrine, in general, is satisfied that these regulations are neutral in their content, it loses sight of other less obvious forms of control. One of these has been the mass surveillance of streets, either through cameras installed on them or those worn by police officers, as a means of threatening those who protest with the possibility of being identified. How has the citizenry responded? By resorting to elements, such as masks, hoods, and balaclavas, or more recently umbrellas, to avoid identification and to safeguard their right to protest by fending off this threat (Kwok, 2021, p. 6).States, however, have increasingly criminalized this citizen strategy. Whereas antimask legislation is far from being new-criminalization in some places is possible thanks to statutes passed as far back as the 1840s (Doherty, 2020, p. 276)-there is a renewed trend toward their use. What is more troubling is that experience shows that regimes come in all forms and shapes when it comes to criminally banning the use of masks in protests. I briefly mention just a few examples in section 2.The right to protest is regularly built upon a cluster of foundational rights, most notably freedom of expression and of assembly-without them, there can be no right to protest. This work proposes to include the right to privacy in the cluster of constitutional rights and freedoms that lie at the foundation of the right to protest. 1 The matters discussed in this work expand that cluster in a twofold sense. First, because they oblige us to consider situations that normally would go unnoticed or at least are not necessarily related to protection of the right to protest. Second, because their consideration would strengthen the constitutional protection of protests. Therefore, it is not just that general