Authoritarian Privacy

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. To explain how this came to be, the Article first turns to several top-down objectives often said to motivate China’s privacy laws: advancing its digital economy, expanding its global influence, and protecting its national security. Although each has been a factor in China’s turn to privacy law, even together they tell only a partial story.

More fundamental to China’s privacy turn is the party-state’s use of privacy law to shore up its legitimacy against a backdrop of digital abuse. China’s whiplashed transition into the digital age has given rise to significant vulnerabilities and dependencies for ordinary citizens. Through privacy law, China’s leaders have sought to interpose themselves as benevolent guardians of privacy rights against other intrusive actors—individuals, firms, 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. China did not enact privacy law in spite of its surveillance state; it embraced privacy law in order to maintain it. The Article adds to our understanding of privacy law, complicates the conceptual relationship between privacy and democracy, and points towards a general theory of authoritarian privacy.

Mark Jia is Associate Professor of Law at the Georgetown University Law Center.  He specializes in comparative and transnational law, with particular interest in the United States and China.  His articles have been or will be published in the University of Chicago Law Review, the University of Pennsylvania Law Review, the Virginia Journal of International Law, and the American Journal of Comparative Law.  His article, Illiberal Law in American Courts, was awarded the 2022 Mark Tushnet Prize by the AALS Section on Comparative Law.  

Jia was previously a fellow and lecturer with Harvard Law School's East Asian Legal Studies Program.  He has practiced appellate litigation at two global law firms, and served as law clerk to three judges: Justice David Souter and Justice Ruth Bader Ginsburg of the U.S. Supreme Court, and Judge William Fletcher of the U.S. Court of Appeals for the Ninth Circuit.  Mark is a graduate of Princeton, Oxford, where he studied as a Rhodes Scholar, and Harvard Law School, where he was Articles Co-Chair of the Harvard Law Review. He is the National Secretary of the Rhodes Scholarships for China.