This chapter defends a sceptical perspective on “racial privacy,’ and explores the grounds policymakers can and should rely on for declining to coerce a form of arguably sensitive data. Informational privacy receives protection in contemporary US law through a large volume of constitutional, statutory and common law rules. However "racial" information received little legal protection. This has always been true in the US. Far from banning racial identification and data collection out of regard for privacy, US legislation requires classification by race. It is required through the decennial census; and it is required by federal labour and employment regulations. A California referendum to ban racial data collection failed. Too many Californians were convinced that the capacity to collect information about race was essential to protect civil rights and health. Race is well recognized in the European Union as a category of "sensitive" information. The same is not true in the US although race can be a socially sensitive subject matter, and the concept of racial privacy does make rare appearances in US case law. But racial privacy requirements remain absent from the massive, main body of information privacy law. The treatment of race as a private matter is impractical given the ease with which what Americans think of as a person's "race" can be discerned from their physical appearance. The First Amendment of the United States Constitution protects the group association rights. In NAACP v. Alabama, the Supreme Court held that the membership list of a civil rights group need not be released to state government. While the creation of a racial privacy right in the United States makes little sense, the continued recognition of the right of persons of all races to privately associate contributes to racial justice.
Keywords: race, ethnicity, sensitive data, African Americans, European Union Directive on Race, John Rawls, proprietary privacy, civil rights, strict scrutiny, suspect classification, Proposition 54, the Racial Privacy Initiative, Pavesich, NAACP
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