I. UNDERSTANDING PRIVATE-SECTOR SURVEILLANCE OF INTIMATE LIFE
This Part gives us a glimpse of the private sector’s wide-ranging surveillance of intimate life.30 First, it describes scenarios of first-party collection—by which I mean instances where people have direct relationships with businesses collecting their intimate information. Then, it gives examples of third-party collection—by which I mean instances where people lack a direct relationship with private entities handling their intimate information. I use the concepts of first-party and third-party data collection to organize the varied commercial scenarios in which intimate information is collected, processed, used, and shared.
A. Cataloging First-Party Collection
30 Karen Levy has an important symposium piece focusing on surveillance practices in the home, often (though not always) involving consensual intimate partners. Karen E.C. Levy, Intimate Surveillance, 51 IDAHO L. REV. 679 (2015). In that work, Professor Levy helpfully breaks down intimate surveillance into three categories: dating, tracking intimate and romantic partners, and fertility monitoring. In this article, I explore the collection, use, sharing, and storage of information about all aspects of intimate life, including but not limited to the home, building on my work on commercial databases of sensitive information, cyber civil rights, nonconsensual pornography, cyber stalking apps, sexual privacy, and deep fakes. See Danielle Keats Citron, Reservoirs of Danger: The Evolution of Public and Private Law at the Dawn of the Information Age, 80 S. CAL. L. REV. 241 (2006); Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. REV. 61 (2009); Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 WAKE FOREST L.REV. 345 (2014); Danielle Keats Citron, The Right to Sexual Privacy in VISIONS OF PRIVACY IN THE MODERN AGE (Marc Rotenberg et al. eds 2015); Danielle Keats Citron, Spying Inc., 72 WASH. & LEE L. REV. 1243 (2015); Danielle Keats Citron, Sexual Privacy, 128 YALE L.J. 1870 (2019); Danielle Keats Citron, Why Sexual Privacy Matters for Trust, 96 WASH. U. L.REV. 1189 (2019); Danielle Keats Citron & Robert Chesney, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 CAL. L. REV. 1753 (2019). I am using first-party and third-party data collection as a way to understand the broad array of firms involved in collecting, using, sharing, and storing intimate information.
Businesses routinely gather intimate information directly from individuals. First-party collection includes sites related to sexual and reproductive health, porn sites, dating apps, and personal devices.
1. Sexual and Reproductive Health
Countless apps are devoted to the collection of information about sexual and reproductive health. Sites and apps let people track their sex lives, including when they had sex, with whom, whether they used protection, and when they masturbated.31 Some host community forums where subscribers can connect with each other to discuss their sex lives.32 Health apps increasingly let users track their sexual activity.33
There are male-oriented health companies focusing on sexual issues.34 For instance, the startup Ro sends erectile dysfunction drugs directly to consumers. Hims provides treatments for male hair and sexual issues. Those two firms alone raised more than 80 million each in financing.35
The term “femtech” describes apps and services that collect information about women’s period cycles, fertility, pregnancies, menopause, and sexual and reproductive histories.36 Nearly one third of women in the United States use period-tracking apps.37 Menstrual tracking apps are the fourth most popular health app among adults and the second most popular among girls.38The startup Gennev provides a “free” online menopause health assessment that “collects 72 data points—and nearly 35,000 women took it in 2019.”39 Menopause startups have raised $254 million in the past ten years while femtech startups as a whole raised more than $498 million in 2019 alone.40
31 Emma McGowan, Tracking Your Sex Life With Apps Makes It Super Easy, Bustle (January 9, 2020), https://www.bustle.com/p/tracking-your-sex-life-with-apps-makesit-super-easy-19779217.
32 Id.
33 Lux Alptraum, Apple’s Health App Now Tracks Sexual Activity, and That’s a Big Opportunity, MOTHERBOARD (October 23, 2016, 1:00 p.m.).
34https://pitchbook.com/news/articles/this-year-is-setting-records-for-femtechfunding.
35 Id.
36Harwell, supra note, at.
37Donna Rosatto, What Your Period Tracker App Knows About You, Consumer Reports (January 22, 2020), https://www.consumerreports.org/health-privacy/whatyour-period-tracker-app-knows-about-you/. There are also fertility apps that track women’s menstrual cycles and pregnancy apps that monitor women’s habits, mood, fetal movements, and more. Quantifying Fertility and Reproduction Through Mobile APPs: A Critical Overview, Arrow for Change, vol. 22, at 13-14 (2016). Some apps like Glow cover all aspects of fertility, including tracking women’s cycles, fertility, pregnancy, and a baby’s development in the first year. Id.
38Michelle L. Moglia et al., Evaluation of Smartphone Menstrual Cycle Tracking Applications Using an Adapted APPLICATIONS Scoring System, OBSTETRICS & GYNECOLOGY, volume 127 (June 2016).
39 Eliza Haverstrock, Narrative change: VCs are finally ready to talk about menopause, PitchBook (May 28, 2020), available at https://pitchbook.com/news/articles/vc-menopause-femtech
40 https://pitchbook.com/news/articles/vc-menopause-femtech.
Subscribers of menstrual tracking apps enter, among other things, their weight, temperatures, moods, reading material, sexual encounters, tampon use, alcohol consumption, cigarette and coffee habits, bodily secretions, and birth-control pills.41 Apple’s Health app syncs with period and fertility tracking apps and allows subscribers to track their sexual activity.42The Flo app provides extra features such as period predictions and health reports that can be shared with doctors.43 Some services let subscribers obtain discounts on products like tampons.44
Consider the Eve Glow app. Subscribers must record their sex drive status with the following choices: “DO ME NOW, I’m down, or MIA.”45 To complete their health log, subscribers must input whether they orgasmed during sex.46The app’s screen enables subscribers to answer “YASSS, No, or Faked It.”47 They are asked to indicate whether they are experiencing cramps, tender breasts, or bloating.48
41Privacy International, No Body’s Business But Mine: How Menstruation Apps Are Sharing Your Data (Sept. 9, 2019) https://privacyinternational.org/long-read/3196/nobodys-business-mine-how-menstruation-apps-are-sharing-your-data. For instance, the app Clue goes further and asks subscribers to track not just the dates and details of their menstrual cycles but also their discharge of cervical fluids, medication, sex life, injections, illnesses, and cervical position. Sadaf Khan, Data Bleeding Everywhere: A Story of Period Trackers, MEDIUM (June 7, 2019), https://deepdives.in/data-bleeding-everywhere-a-storyof-period-trackers-8766dc6a1e00. The Ovia app lets users indicate the consistency of their cervical discharge, from egg whites and water to a bottle of school glue. Id. As Karen Levy has noted, period-tracking apps are also marketed to people’s partners so that they can manage their relationships around menstrual cycles. Karen Levy, Intimate Surveillance, 51 IDAHO L. REV. 679, 685-86 (2015) (discussing apps like PMSTracker and iAmAMan, which enables subscribers to track multiple women’s cycles and uses multiple passwords to allow users to conceal their tracking activity).
42Lux Alptraum, Apple’s Health App Now Tracks Sexual Activity, and That’s a Big Opportunity, MOTHERBOARD (October 23, 2016). Some apps are exclusively designed to track people’s sexual activity. On Bedpost’s app, subscribers track the names of sexual partners, dates of sexual experiences, and rank the sexual experience. http://www.bedposted.com/
43Id.
44Rosatto, supra note, at.
45 MIA presumably means “Missing In Action.”
46Sadaf Khan,* Data Bleeding Everywhere: A Story of Period Trackers*, MEDIUM (June 7, 2019), https://deepdives.in/data-bleeding-everywhere-a-story-of-period-trackers8766dc6a1e00.
47 Id.
48 Khan, supra note, at.
Femtech apps like Eve Glow host discussion boards where people using the services talk to each other about their intimate lives, including their experiences with sex, fertility, abortions, or miscarriages. A user of Eve Glow explained that she “kind of lose[s] [her] inhibition because so many other women are talking” about their intimate lives on the discussion boards.49 The apps track and store those communications.
Three million people use Glow’s suite of apps, which include Eve Glow, Glow, Glow Nurture, and Glow Baby.50 The company is part of HVF Labs whose objective is to “take advantage of potential low-cost sensors, the gradual increase in access to broadband, and the high storage capacity to collect and explore ‘data as a commodity.’”51 Glow’s privacy policy says that the company may decide to share information collected on the app with third parties to inform users about goods and services including those conducting medical research. Only some of the user data shared is “made anonymous.”52
Businesses pair health devices with apps to track individuals’ intimate data. Looncup, for instance, is poised to offer a smart menstrual cup that records the volume and color of menstrual fluid on its app, ostensibly for health benefits.53 Trackle links a vaginal thermometer with an app measuring women’s inner temperature.54
Reproductive health apps market themselves as providing expert advice. Yet many are riddled with misinformation. According to researchers, free menstrual cycle tracking apps are riddled with inaccurate information.55 Most the apps were “inaccurate, contain misleading health information, or do not function.” Only 20 percent of the period-tracking apps predicted periods accurately and even those apps contained erroneous medical information.56
49* Id*.
50 Natasha Felizi & Joana Varon, Menstruapps—How to Tur Your Period Into Money (For Others), CHUPADOS (CODING RIGHTS) (emphasis added).
51 Id.
52 Id.
53https://www.kickstarter.com/projects/700989404/looncup-the-worlds-firstsmart-menstrual-cup. Looncup is now available for pre-order. http://www.looncup.com/.
54Quantifying Fertility and Reproduction Through Mobile APPs: A Critical Overview, ARROW FOR CHANGE, vol. 22, at 13-14 (2016).
55Moglia, supra note, at 1157.
56 Id.
Femtech apps also have been prone to security problems. In 2016, Consumer Reports found that anyone could access Glow subscribers’ health data, including the dates of abortions and sexual encounters, if they had their email addresses.57 Flo was caught sending Facebook subscribers’ information including when they were trying to conceive and having their periods.58
2. Porn Sites
Pornography sites collect and store a wealth of information about people’s sexual interests, desires, and sexual practices. They derive intimate information from people’s search queries, the time and frequency of their visits, and private chats. The most popular free porn site PornHub reports that the most searched terms on the site include lesbian, “milf,” stepmom, and teen.59 The very nature of some porn sites reveals people’s sexual interests like bestiality or incest sites.
Some specialty sites require members to provide email addresses, passwords, and credit card information.60 A zoophilia forum accumulated personal information for about 71,000 individuals, including usernames, birth dates, and IP addresses.61 Rosebuttboard.com, a forum dedicated to “extreme anal dilation and anal fisting,” recorded the personal information of 100,000 user accounts, including the email addresses of military members and federal employees.62
57 Jerry Beilinson, Glow Pregnancy App Exposed Women to Privacy Threats, Consumer Reports Finds, CONSUMER REPORTS (July 28, 2016), https://www.consumerreports.org/mobile-security-software/glow-pregnancy-appexposed-women-to-privacy-threats/
58 https://www.wsj.com/articles/you-give-apps-sensitive-personal-informationthen-they-tell-facebook-11550851636?mod=e2tw
59 The 2019 Year in Review, PORNHUB INSIGHTS (Dec. 11, 2019), https://www.pornhub.com/insights/2019-year-in-review#searches; https://www.psychologytoday.com/us/blog/all-about-sex/201803/surprising-newdata-the-world-s-most-popular-porn-site.
60Joseph Cox, Thousands of Bestiality Website Users Exposed in Hack, MOTHERBOARD (March 29, 2018), available at https://www.vice.com/en_us/article/evqvpz/bestialitywebsite-hacked-troy-hunt-have-i-been-pwned (explaining that hack of bestiality site revealed more than 3,000 users’ full names, password hashes, birthdates, IP addresses, and a “few hundred private messages between users”).
61Have I Been Pwned (@haveibeenpwned), TWITTER (Oct. 19, 2019, 5:25 PM), https://twitter.com/haveibeenpwned/status/1185668262538838016. Hackers exposed the personal details of the users of the bestiality site online. Ahmed Waqas, Animal abuse website hacked; thousands of users exposed, HACKREAD (March 30, 2018), https://www.hackread.com/animal-abuse-website-hacked-users-exposed/.
Porn sites are some of the most popular sites online. They garner more visitors a month than Amazon, Netflix, and Twitter combined.63 In 2018, PornHub had 33.5 billion visits.64 It had an average of 63,000 visitors per minute.65 In 2019, that number grew to 80,000 visitors per minute.66
3. Dating Apps
Dating apps and services collect broad swaths of people’s intimate (paired with personally identifying) information, including name, photograph, occupation, location, relationship status, romantic or sexual interests, sexual orientation, interest in extramarital affairs, or sexually transmitted infections.67 Adults are not the only ones on dating apps; many teenagers also subscribe to Tinder, MeetMe, Hot or Not, MyLOL, and Kik.68 Such sites are commonly used by LGBTQ youth who lack supportive networks at school to use dating apps to connect with others.69
62Joseph Cox, Another Day, Another Hack: Is Your Fisting Site Updating Its Forum Software?, VICE (May 10, 2016, 9:54 AM), https://www.vice.com/en_us/article/qkjj4p/rosebuttboard-ip-board; Jonathan Keane, Hack shows government and military employees used their email addresses on hardcore fetish site, DIGITAL TRENDS (May 13, 2016, 12:11 PM), https://www.digitaltrends.com/computing/rosebutt-hack/; Troy Hunt (@troyhunt), TWITTER (May 10, 2016, 10:06 AM), https://twitter.com/troyhunt/status/730036184651431937.
63Elena Maris, Timothy Libert & Jennifer Henrichsen, Tracking Sex: The Implications of Widespread Sexual Data Leakage and Tracking on Porn Websites, NEW MEDIA & SOCIETY (July 2019).
64Digital Fingerprints: How the Porn You Watch May Be Watching You (Feb. 13, 2019).
65https://fightthenewdrug.org/pornhub-visitors-in-2018-and-review-of-topsearches/.
66The 2019 Year in Review, PORNHUB INSIGHTS (Dec. 11, 2019), https://www.pornhub.com/insights/2019-year-in-review.
67See Thomas Germain, How Private is Your Online Dating Data?, CONSUMER REPORTS (Sept. 21, 2019), https://www.consumerreports.org/privacy/how-private-is-your-onlinedating-data/ (“You might never choose to share those thousands of intimate facts with a friend or family member, but if you use dating apps, you are providing the information to companies that will collect and retain every detail.”); see also Michael Zimmer, OKCupid Study Reveals the Perils of Big-Data Science, WIRED (May 14, 2016 7:00 AM), https://www.wired.com/2016/05/okcupid-study-reveals-perils-big-data-science/. It is worth noting the rise of dating intelligence apps like Lulu that allow women to anonymously review and rate men. Lulu raised $6 million in venture funding and was acquired by Badoo in 2016. https://pitchbook.com/newsletter/dating-intelligence-applulu-acquired-by-badoo.
68Christina Elgersma, Tinder and 7 More Dating Apps Teens Are Using, COMMON SENSE MEDIA BLOG (February 12, 2019), avalaible at
https://www.commonsensemedia.org/blog/tinder-and-7-more-dating-apps-teens-areusing. Teenagers can access some of these apps via Facebook. Id.
69 Id.
Simple behaviors on these apps and sites, such as how long a user views a particular profile or image, can reveal the characteristics or features that a person looks for in a romantic partner.70 Journalist Judith Duportail discovered just how extensive her disclosures to Tinder were when her GPDR request to the company returned 800 pages of detailed information.71 A review of the 1,700 messages Duportail sent through the app revealed her “hopes, fears, sexual preferences and deepest secrets.”72
All of this intimate information is ripe for exploitation and disclosure.73 In some cases, this data may appear in the profiles of potential matches.74 As explored below, it may be shared with advertisers and other firms. It may be inadequately secured and stolen by thieves. Hackers have targeted individual accounts and dating services to steal intimate information in order to blackmail and extort subscribers.75 In 2015, a data breach resulted in hackers publishing online the personal details of subscribers to Ashley Madison, a site for people seeking extra-marital affairs.76 Millions of subscribers’ names, emails, sexual preferences, and sexual desires were posted online in a searchable format. To this day, criminals have been using the intimate information shared with Ashley Madison in extortion schemes.77
70 Germain, supra note.
71 The documents included Duportail’s Facebook likes and number of friends, links to her Instagram photos, her education, the age-range of men she was interested in, the number of times she opened the app, the number of people she matched with, and where and when each conversation with a match took place. Judith Duportail, I asked Tinder for my data. It sent me 800 pages of my deepest, darkest secrets, GUARDIAN (Sept. 26, 2017, 2:10 AM), https://www.theguardian.com/technology/2017/sep/26/tinder-personal-data-datingapp-messages-hacked-sold. Facebook started a dating app in 2019. https://www.nytimes.com/2019/09/05/opinion/facebook-dating-app.html; https://newsroom.fb.com/news/2019/09/facebook-dating/.
72Duportail, supra note.
73“Tinder’s privacy policy clearly states: ‘you should not expect that your personal information, chats, or other communications will always remain secure.’” Duportail, supra note; see also Privacy Policy, TINDER, https://www.gotinder.com/privacy (last updated May 2, 2018) (“As with all technology companies, although we take steps to secure your information, we do not promise, and you should not expect, that your personal information will always remain secure.”).
74In 2016, Danish researchers refused to anonymize a data set containing 70,000 OK Cupid users’ “usernames, age, gender, location, what kind of relationship (or sex) they’re interested in, personality traits, and answers to thousands of profiling questions.” Zimmer, supra note. The researchers argued that the information was already “publicly available,” though Zimmer notes that this is not entirely accurate. Id. “Since OkCupid users have the option to restrict the visibility of their profiles to logged-in users only, it is likely the researchers collected—and subsequently released—profiles that were intended to not be publicly viewable.” Id.
75Lily Hay Newman, Hacks, Nudes, and Breaches: It’s Been a Rough Month for Dating Apps, WIRED (Feb. 15, 2019, 4:44 PM), https://www.wired.com/story/ok-cupid-datingapps-hacks-breaches-security/. “The same factors that make dating sites an appealing target for hackers also make them useful for romance scams: It’s easier to assess and approach people on a site that are already meant for sharing information with strangers.” Id.
76 Zak Doffman, Ashley Madison Hack Returns To ‘Haunt’ Its Victims; 32 Million Users Now Watch and Wait, MEDIUM (Feb. 1, 2020) (explaining that the Ashley Madison hack resulted in the leaking of intimate information of 32 million people). Ashley Madison touted its service as enabling “infidelity and married dating.” Kim Zetter, Hackers Finally Post Stolen Ashley Madison Data, WIRED (Aug. 18, 2015), https://www.wired.com/2015/08/happened-hackers-posted-stolen-ashley-madisondata/. The data released by hackers included names, passwords, addresses, phone numbers submitted by users of the site. Id. Also included were users’ credit card transactions, revealing people’s real names and addresses. Id. The data dump revealed members’ sexual fantasies and desires, such as “I like lots of foreplay and stamina, fun, discretion, oral, even willingness to experiment.” Id. As Karen Levy wisely noted, “the real benefit of self-tracking is always to the company. People are being asked to do this at a time when they’re incredibly vulnerable and may not have any sense where that data is being passed.” Id. Nor do they realize how easy it is to re-identify such information.
77Zak Doffman, Ashley Madison Hack Returns To ‘Haunt’ Its Victims; 32 Million Users Now Watch and Wait, MEDIUM (Feb. 1, 2020) (explaining that victims of Ashley Madison hack are receiving emails with embarrassing details from the breach, such as that a victim shared that they received “’chemical help’ for a good time or private messages sent to other site members, and with demands for bitcoin ransom to be paid in a limited amount of time).
With respect to particular sites, membership or browsing on the site may reveal someone’s sexual preferences and indiscretions.78 In October 2016, hackers obtained 412 million account records from Friend Finder Networks.79 The information exposed included “email addresses, passwords, dates of last visits, browser information, IP addresses and site membership status across sites run by Friend Finder Networks,” including Adult Friend Finder, Cams.com, Penthouse.com, and three other sites.80
78 See, e.g., Cox, supra note; Broder Van Dyke, infra note.
79“Among the leaked account details were 78,301 US military email addresses, 5,650 US government email addresses and over 96[ million] Hotmail accounts. . . . [A]lso included the details of what appear to be almost 16[ million] deleted accounts.” Samuel Gibbs, Adult Friend Finder and Penthouse hacked in massive personal data breach, GUARDIAN (Nov. 14, 2016, 6:21 AM), https://www.theguardian.com/technology/2016/nov/14/adult-friend-finder-andpenthouse-hacked-in-largest-personal-data-breach-on-record.
80 “This is not the first time Adult Friend Network has been hacked. In May 2015 the personal details of almost four million users were leaked by hackers, including their login details, emails, dates of birth, post codes, sexual preferences and whether they were seeking extramarital affairs.” Gibbs, supra note. The inclusion of data from Penthouse.com in the 2016 breach was particularly concerning as Friend Finder Networks sold the site to Penthouse Global Media in February 2016.
Three years later, a hacker obtained 250,000 “email addresses, usernames, IP addresses, and hashed passwords” from Dutch sex-work forum Hookers.nl where “clients discuss[ed] their experiences with sex workers.”81
4. Personal Devices
An array of devices records people’s intimate activities and interactions. Sex toys are obvious examples. We-Vibe, a networked vibrator, allows subscribers to control others’ devices via an app. The app let partners to communicate with each other via text or video chat.82 The Lioness vibrator similarly enables subscribers to live stream “what is going on in the moment” and permits partners to remotely control the device.83 Companies sell wi-fi enabled butt plugs, vibrating masturbators for men, and devices for the penis that track thrusting.84 Like many consumer goods, internetconnected sex toys are not developed with privacy and security in mind.85
81 Samantha Cole & Joseph Cox, A Hacker Stole 250k User Account Details from a Dutch Sex Work Site, VICE (Oct. 10, 2019, 10:32 AM), https://www.vice.com/en_us/article/d3a5gy/hacker-stole-user-account-details-froma-dutch-sex-work-site-hookers-nl (“Although prostitution is legal and regulated in the Netherlands, people still seek anonymity when they’re buying services—whether from websites like Hookers.nl or in person at brothels.”); Thomas Brewster, Dutch Prostitution Site Hookers.nl Hacked—250,000 Users’ Data Leaked, FORBES (Oct. 10, 2019, 8:43 AM), https://www.forbes.com/sites/thomasbrewster/2019/10/10/dutch-prostitution-sitehookersnl-hacked–250000-users-data-leaked/(“Dutch broadcaster NOS, which broke the story. . . viewed some of the data and said it could determine some real names of users”)
82Steven Musil, Internet-connected vibrator connects with privacy lawsuit, CNET (Sept. 13, 2016, 4:15 PM), https://www.cnet.com/news/internet-connected-vibrator-we-vibelawsuit-privacy-data/.
83https://blog.lioness.io/now-you-can-see-your-orgasm-in-real-time-359afbdfa6d0. We-Vibe recorded the dates and times of a vibrator’s use and the intensity and mode selected by subscribers without their consent, leading to a class action lawsuit discussed in Part II. See Amended Complaint, N.P & P.S. v. Standard Innovation Corp., Case No. 16- CV-08655 (N.D. Ill. Filed February 27, 2017).
84Emily Dreyfuss, Don’t Get Your Valentine an Internet-Connected Sex Toy, WIRED (February 14, 2019); https://jezebel.com/how-fit-is-your-dick-exactly-the-sexfit-ringknows-al-1618065007.
85Internet of Dongs, Goals, available at https://internetofdon.gs/about/. Security researchers involved in “The Internet of Dongs Project” report on security vulnerabilities and work with companies interested in fixing problems. The researchers have published guidance documents on the reporting of security vulnerabilities and ensuring secure software development lifecycle to prevent vulnerabilities from occurring in the first place. https://internetofdon.gs/vendor-resources/.
While voice-enabled personal assistants that listen to and record people’s activities are less obviously related to intimate life, they are no less important.86 Amazon’s Echo and other Alexa-enabled devices are marketed as in-home hubs for managing day-to-day tasks. They record people’s communications, storing them as voice recordings and text transcripts in the cloud.87 Amazon retains text transcripts even after subscribers choose to delete the saved audio files of their voice interactions with the device.88
According to researchers, voice-activated assistants like Alexa and Echo do not only wake and record when subscribers say the wake word. The systems are error-prone and have recorded intimate conversations.89 Apple’s Siri has captured recordings of sexual encounters.90 Computer science researchers at Northeastern University conducted a study of smart speakers by exposing devices to three audiobooks and nine episodes of the television show The Gilmore Girls.91 There were 63 false positives in 21 hours.92
Amazon employs thousands of people worldwide to analyze and transcribe voice clips to improve Alexa’s accuracy.93 Some employees have watched people’s home camera footage.94 One German Amazon customer inadvertently received hundreds of Alexa recordings and transcripts from another user in response to a GDPR request in August 2018.95 The person could be heard in multiple locations, including the shower, as could a frequent female guest.96 A German magazine found it “fairly easy to identify the person involved and his female companion” using “[w]eather queries, first names, and even someone’s last name.”97 In July 2019, Google admitted to a similar breach after a contractor shared with a news site more than 1,000 sound recordings of customer conversations made by Google Assistant.98 Included in the recordings were people talking about medical conditions.99
86 Alex Hern, Apple contractors ‘regularly hear confidential details’ on Siri recordings, GUARDIAN (July 2019, 2019 12:34 PM), https://www.theguardian.com/technology/2019/jul/26/apple-contractors-regularlyhear-confidential-details-on-siri-recordings.
87 Makena Kelly & Nick Statt, Amazon confirms it holds on to Alexa data even if you delete audio files, VERGE (July 3, 2019, 4:14 p.m. EDT), https://www.theverge.com/2019/7/3/20681423/amazon-alexa-echo-chris-coons-datatranscripts-recording-privacy.
88 Id.
89 Allen St. John, Smart Speakers that Listen When They Shouldn’t *(August 29, 2019); Alex Hern, *Apple contractors ‘regularly hear confidential details’ on Siri recordings, GUARDIAN (July 2019, 2019 12:34 PM), https://www.theguardian.com/technology/2019/jul/26/applecontractors-regularly-hear-confidential-details-on-siri-recordings.
90 Id.
91 Id.
92 Id.
93 Matt Day, Giles Turner & Natalia Drozdiak, Amazon Workers Are Listening to What You Tell Alexa, BLOOMBERG (April 10, 2019, 6:34 PM EDT), https://www.bloomberg.com/news/articles/2019-04-10/is-anyone-listening-to-you-onalexa-a-global-team-reviews-audio.
94 Natalia Drozdiak et al., Amazon Workers May Be Watching Your Cloud Cam Home Footage, BLOOMBERG (Oct. 10, 2019 5:00 AM), https://www.bloomberg.com/news/articles/2019-10-10/is-amazon-watching-youcloud-cam-footage-reviewed-by-humans.
95Jennings Brown, The Amazon Alexa Eavesdropping Nightmare Came True, GIZMODO (Dec. 20, 2018, 11:24 AM), https://gizmodo.com/the-amazon-alexa-eavesdroppingnightmare-came-true-1831231490. Amazon later claimed this occurred because of a “onetime error” by a staff member and disabled the link that provided access to the data. Id.
96 Brown, supra note.
97Brown, supra note.
98Todd Hasleton, Google admits partners leaked more than 1,000 private conversations with Google Assistant, CNBC (July 11, 2019), https://www.cnbc.com/2019/07/11/googleadmits-leaked-private-voice-conversations.html.
99 Hasleton, supra note.
Amazon plans to expand Alexa’s reach, with one executive telling The New York Times, “there is no reason not to put them everywhere in your house.”100 Amazon has released a tiny version of the device, Echo Flex, meant for bathrooms, which plugs into wall outlets.101 Customized, location-specific versions of Alexa are being sold and deployed in hotel rooms around the country.102
B. Surveying Third-Party Collection
100 Weise, supra note, at. Kohler took Amazon’s advice to heart, announcing a version of its Moxie showerhead that includes a removable Alexa-enabled speaker imbedded right in the showerhead itself. Chris Davies, Kohler put Alexa in your showerhead and gave your toilet an app, SLASHGEAR (Jan. 3, 2020, 11:48 AM), https://www.slashgear.com/kohler-putalexa-in-your-showerhead-and-gave-your-toilet-an-app-03605166/.
101 Karen Weise, Amazon Wants Alexa to Move (With You) Far Beyond the Living Room, NEW YORK TIMES (September 25, 2019).
102Chris Welch, Amazon made a special version of Alexa for hotels with Echo speakers in their rooms, VERGE (June 19, 2018 6:00 AM), https://www.theverge.com/2018/6/19/17476688/amazon-alexa-for-hospitalityannounced-hotels-echo. In 2019, to my surprise, I found an Alexa in my hotel room at the Oklahoma City Ambassador hotel. A card under the black unassuming device said, “Need something? Just Ask Alexa.” It continued, “Ready for Bed?” tell Alexa to “play white noise.” The device enabled live connections to the front desk, room service, and housekeeping. I went to the front desk to complain because the room did not otherwise have a phone. The attendant explained that I was the first person to object to the device and that most guests did not mention even noticing it.
First-party collection is often tied to third-party collection. Sometimes, companies purchase intimate data from first-party collectors. At other times, they obtain intimate information from someone who lack authority to share, disclose, or sell it. This section provides illustrations.
1. The Data Hand-Off: Advertising and Analytics
First-party data collectors often allow advertising firms to collect subscribers’ intimate information for a fee. Period-tracking apps share user data with online advertisers who may further resell the information.103 For instance, Maya and MIA Fem share data about subscribers’ contraception and sexual encounters with Facebook’s advertising system (even if those individuals do not have Facebook accounts themselves). 104 Although the apps are marketed to consumers as “free,” their price is people’s most intimate information.105
First-party data collectors allow analytics firms to place trackers on their sites. For instance, Grindr shared subscribers’ HIV status (noted as positive, positive on HIV treatment, negative, or negative on PrEP) with two companies hired to optimize the app.106 It also disclosed to advertisers subscribers’ “tribe” (meaning what gay subculture they identify with), precise geolocation, sexuality, relationship status, and phone ID.107 Some of the information shared with advertisers appeared in plain text.108
103 At least 11 apps sent Facebook intimate information even though some of the app subscribers were not Facebook members at all and those who used Facebook were not logged into the site. Daniel Moritz Rabson, Does Facebook* Collect Your ‘Intimate Secrets’ From Apps? Gov. Andrew Cuomo orders Investigation,* NEWSWEEK (Feb. 22 2019, 3:58 PM), https://www.newsweek.com/new-york-governor-directs-investigation-facebookinformation-collection-1341170. Facebook claimed the apps sharing information with it violated its terms of service. Apps send intimate user data to Facebook: Report, HINDU (Feb. 23, 2019, 9:52 PM), https://www.thehindu.com/sci-tech/technology/apps-send-intimateuser-data-to-facebook-report/article26352817.ece
104 Marie C. Baca, These apps may have told Facebook about the last time you had sex, WASH. POST (Sept. 17, 2019, 3:21 PM), https://www.washingtonpost.com/technology/2019/09/10/these-apps-may-have-toldfacebook-about-last-time-you-had-sex/. For instance, users tried to block tracking by using anonymizing browsers.
105 Hoofnagle & Whittington, supra note, at.
106Azeen Ghorayshi & Sri Ray, Grindr Is Letting Other Companies See User HIV Status and Location Data, BUZZFEED NEWS (Apr. 2, 2018, 11:13 PM), https://www.buzzfeednews.com/article/azeenghorayshi/grindr-hiv-statusprivacy. Grindr defended its sharing with the analytics companies, Apptimize and Localitics, as essential to making the app better. Id. Localytics describes its services as combining people’s profile data (who they are) and behavioral data (how they behave online) to personalize mobile advertising. Localytics, The Stages of Personalization, available at https://ebooks.localytics.com/the-stages-of-personalization#the-stages-ofpersonalization-1. Profile data, the company explains, can originate from many sources. More than 37,000 apps use the service. Id. In response to bad press and pushback from subscribers, Grindr announced that it would stop sharing HIV status information with third parties. Azeen Ghorayshi, Grindr Will Stop Sharing Users’ HIV Data with Other Companies, BUZZFEED NEWS (Apr. 2, 2018, 11:03 PM), https://www.buzzfeednews.com/article/azeenghorayshi/grindr-stopped-sharing-hivstatus.
107Ghorayshi & Ray, supra note. In late 2019, Norwegian researchers found that Grindr uses various advertising networks and some received information about the type of relationship the user is looking for. Norwegian Consumer Council, Out of Control—A Review of Data Sharing By Popular Mobile Apps 30, available at https://fil.forbrukerradet.no/wp-content/uploads/2020/01/mnemonic-security-testreport-v1.0.pdf
108 Id. Grindr’s privacy policy states that if subscribers “choose to include information in your profile, and make your profile public, that information will also become public.”Id.
Third-party trackers are pervasive on porn sites. Researchers found that 93 percent of 22,484 porn sites analyzed allowed third parties to collect information about people’s browsing habits, even where viewers took steps to hide them.109 On average, porn sties had seven companies tracking viewers’ information. Google trackers appeared on 50 percent of the sites studied, Oracle on 24 percent, and Facebook on ten percent.110 Porn-specific trackers included ExoClick, JuicyAds, and EroAdvertising.111 Another 2019 study found that more half of the top 100 most popular porn sites host thirdparty trackers that use a technique allowing cookies to be synchronized across sites.112 Microsoft’s Elena Maris noted that, “The fact that the mechanism for adult site tracking is so similar to, say, online retail should be a huge red flag.”113
Third-party trackers collected people’s IP addresses, phone’s advertising identification number, and information suggesting their sexual desires.114 Forty-five percent of porn site URLs include words or phrases suggesting a particular sexual preference or interest, such as “boyfuckmomtube.” Adult advertising networks collect IP addresses, browsers, locations, basic PC details, and other information including how much time people spend on certain videos and what categories of porn they select.115
109 Elena Maris, Timothy Libert & Jennifer Henrichsen, Tracking Sex: The Implications of Widespread Sexual Data Leakage and Tracking on Porn Websites (July 2019).
110 Id. After the study was released, Google denied its software was collecting information to build advertising profiles. James Vincent, Google and Facebook’s Tracking Software Is Widely Used on Porn Sites, Shows New Study, THE VERGE (July 18, 2019). The company also claimed that tags for ad services are never allowed to transmit personally identifiable information. Id.
111 Id. at 5.
112Pelayo Vallina et al., Tales from the Porn: A Comprehensive Privacy Analysis of the Web Porn Ecosystem, available at http://www1.icsi.berkeley.edu/~narseo/papers/pornweb2019_preprint.pdf.
113 https://www.nytimes.com/2019/07/17/opinion/google-facebook-sex-websites.html
114 Id. This is a noted change in practice for the most trafficked porn sites, those owned by Pornhub. In 2013, Pornhub’s Vice President said that the Pornhub network, including YouPorn and RedTube, did not allow third parties to access users’ activity on the sites or their web histories. Tracy Clark-Flory, Who’s Tracking Your Porn, SALON (December 12, 2013). Pornhub now has trackers, including adult advertising networks.
115 Dylan Curran, Browsing Porn in Incognito Mode Isn’t Nearly as Private as You Think, THE GUARDIAN (May 27, 2018).
2. Data Brokers
Data brokers amass and sell dossiers with thousands of data points on every person, categorizing them based on intimate information. Their dossiers pair basic information like names, addresses, employers, and information, with far more sensitive material. They detail people’s sexual preferences, porn consumption, sex toy purchases, escort service usage, and reproductive choices.116 People are tagged as rape victims, Erectile Dysfunction sufferers, sex toy purchasers, AIDS/HIV infected, and gay air force personnel.117
Data brokers sell lists of gay and lesbian adults, rape victims, people with sexual addictions, individuals with sexually transmitted diseases, purchasers of adult material and sex toys.118 Some data brokers specialize in dating profiles. For instance, USDate sells dating profiles that include people’s photographs, usernames, email addresses, nationality, gender, and sexual orientation.119 Exact Data sells customer lists of adult dating service subscribers, dating and escort services, and “Suddenly single.”120
116 Id.
117 Jeff Roberts, With data brokers selling lists of alcoholics to big business, the feds have some thinking to do, Gigaom (March 13, 2004), https://gigaom.com/2014/03/13/with-databrokers-selling-lists-of-alcoholics-to-big-business-the-feds-have-some-thinking-to-do/.
118Jeff Roberts, With data brokers selling lists of alcoholics to big business, the feds have some thinking to do, GIGAOM (March 13, 2004), https://gigaom.com/2014/03/13/with-databrokers-selling-lists-of-alcoholics-to-big-business-the-feds-have-some-thinking-to-do/.
119 https://datadating.tacticaltech.org/viz; https://www.vice.com/en_us/article/59vbp5/shady-data-brokers-are-selling-onlinedating-profiles-by-the-millions; Charlie Warzel, Facebook and Google Trackers Are Showing Up on Porn Sites, N.Y. TIMES (July 17, 2019), available at https://www.nytimes.com/2019/07/17/opinion/google-facebook-sex-websites.html.
120 https://www.exactdata.com/mailing-lists.html?keyword=dating (last visited Jan. 31, 2020).
The data-broker industry generates 200 billion dollars annually.121 People’s personal information is harvested from a vast array of sources, including government records, advertisers, and analytics firms, largely without individuals’ knowledge.122 Thousands of data brokers operate in the United States.123 Data brokers have personal information on 95 percent of the U.S. population.124
Data brokers say that their dossiers enhance online advertising and email marketing campaigns.125 They offer their services as “people search sites” to anyone interested in finding out about specific individuals.126 They also sell risk mitigation products described as helping clients prevent fraud that can adversely impact people’s ability to obtain certain benefits.127 Clients include alternative payment providers, educational institutions, insurance companies, lenders, political campaigns, pharmaceutical companies, technology firms, and real estate services.128 Customers also include government agencies and law enforcement.129 As Chris Hoofnagle put it years ago, data brokers serve as “Big Brother’s Little Helpers.”130
121 https://clearcode.cc/blog/what-is-data-broker/.
122 Federal Trade Commission, Report on Data Brokers, https://www.ftc.gov/system/files/documents/reports/data-brokers-call-transparencyaccountability-report-federal-trade-commission-may-2014/140527databrokerreport.pdf.
123 https://clearcode.cc/blog/what-is-data-broker/.
124Kalev Leetaru, The Data Brokers So Powerful Even Facebook Bought Their Data – But They Got Me Wildly Wrong, FORBES (Apr. 5, 2018, 4:08 PM), https://www.forbes.com/sites/kalevleetaru/2018/04/05/the-data-brokers-sopowerful-even-facebook-bought-their-data-but-they-got-me-wildlywrong/#7d52df5d3107
125 Yael Grauer, What Are ‘Data Brokers,’ and Why Are They Scooping Up Information About You?, Motherboard (March 27, 2018), https://www.vice.com/en_us/article/bjpx3w/what-are-data-brokers-and-how-to-stopmy-private-data-collection.
126 Id.
127 Federal Trade Commission, Report on Data Brokers, at viii, 32-33, 48 https://www.ftc.gov/system/files/documents/reports/data-brokers-call-transparencyaccountability-report-federal-trade-commission-may-2014/140527databrokerreport.pdf.
128 Federal Trade Commission, Report on Data Brokers, https://www.ftc.gov/system/files/documents/reports/data-brokers-call-transparencyaccountability-report-federal-trade-commission-may-2014/140527databrokerreport.pdf.
129 David Gray & Danielle Keats Citron, The Right to Quantitative Privacy, 98 MINN. L. REV. 62 (2013); Danielle Keats Citron & David Gray, Addressing the Harm of Total Surveillance: A Reply to Professor Neil Richards, 126 HARV. L. REV. FORUM 262 (2013).
130 Chris Jay Hoofnagle, Big Brother’s Little Helpers: How Choicepoint and Other Commercial Data Brokers Collect, Process, and Package Your Data for Law Enforcement, 29 N.C. J. INT’L & COM. REG. 595 (2003).
3. Cyber Stalking Apps
One infamous sector of the surveillance economy involves the provision of spyware, a type of malware installed on someone’s device without knowledge or consent. Cyber stalking apps enable continuous real-time monitoring of everything phone owners do and say with their devices.131 In real time, people (often domestic abusers or suspicious partners) can track a phone owner’s calls, texts, medical appointments, online searches, porn watching, and minute-to-minute movements. Targeted phones can be turned into bugging devices, recording conversations within a fifteen-foot radius.132
A selling point of cyber stalking apps is their secretive nature. App developers assure subscribers that once they download the app to an unsuspecting person’s phone, the phone owner will not be able to detect the spyware.133 The goal is the stealth surveillance of intimates or exintimates.134 Firms are trying to conceal this fact by taking innocuous names. For instance, an app developer changed the name of its app from Girlfriend Call Tracker to Family Locator but the service remains the same.135 The Electronic Frontier Foundation’s Eva Galperin has been watching the industry closely and she explains that the “people who end up with this software on their phones can become victims of physical abuse, of physical stalking. They get beaten. They can be killed. Their children can be kidnapped.”136
4. Purveyors of Nonconsensual (Sometimes Fake) Porn
Invasions of sexual privacy are the business of countless sites. Many traffic in nonconsensual pornography—sexually-explicit images disclosed without subjects’ consent. Sites solicit users to post people’s nude photos and contact information.137 Some are devoted to gay men and others to women.138 Sites earn revenue from online advertising, profiting directly from their trade in human misery.139
131 Citron, supra note, at 1247.
132 Id.
133 Id. at 1246.
134 Id. at 1247.
135 Laura Hautala, Stalkerware sees all, and US laws haven’t stopped its spread, C/NET (June 5, 2020), https://www.cnet.com/news/stalkerware-sees-all-and-us-laws-haventstopped-its-spread/.
136 Andy Greenberg, Hacker Eva Galperin Has a Plan to Eradicate Stalkerware, WIRED (April 3, 2019), https://www.wired.com/story/eva-galperin-stalkerware-kasperskyantivirus/.
137Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 WAKE FOREST L. REV. 345 (2014); Danielle Citron & Woodrow Hartzog, The Decision that Could Finally Kill the Revenge Porn Business, ATLANTIC (February 3, 2015), https://www.theatlantic.com/technology/archive/2015/02/the-decision-that-couldfinally-kill-the-revenge-porn-business/385113/.
138 I hesitate to name sites here for fear of giving publicity to destructive sexual-privacy invasions that they facilitate and encourage.
139 Carolyn A. Uhl et al., An Examination of Nonconsensual Pornography Websites, SAGE (February 8, 2018).
Online hubs hosting nonconsensual pornography are plentiful.140 More than 3,000 porn sites feature revenge porn as a genre.141 Sites have emerged soliciting users to post deep-fake sex videos.1142 Much like revenge porn sites, the business model of these sites is also online advertising, and it is lucrative. As the founder of the group Battling Against Demeaning & Abusive Selfie Sharing (BADASS) Katlyn Bowden explains, sites hosting nonconsensual pornography have grown crueler in their practices.1143 Instead of considering victims’ requests to remove their nude images, the most popular sites move the images behind a paywall.144
In a variation on this theme, software developers are selling apps that allow subscribers to upload photographs of women and see them nude. The app bills itself as artificial intelligence that “undresses photos of women and produce[s] a realistic nude image.”145 Services charge a flat fee for premium version. One start-up claims to have what it calls porn-social media matching software, which uses facial recognition software to cross references faces in pornography videos and people’s social media profiles. The business’ stated goal is to “help others check whether their girlfriends ever acted in those films.”
140 I will refrain from pointing out the major sites devoted to posting nonconsensual pornography to avoid drawing further attention to them.
141 https://www.mcolaw.com/white-papers-research/action-sheet-on-revenge-porn. A notorious revenge porn site reappeared in February 2020 after being shuttered by Danish authorities in 2018. Joe Uchill, Someone is Trying to Revive the Infamous Revenge Porn Site Anon-IB, MOTHERBOARD (February 14, 2020, 8:39 am). The new site has taken the name and appearance of the old one, which gained notoriety after hosting the hacked nude photos of female celebrities in 2014. Within three weeks of the site’s reopening, over 1,500 posters had uploaded or commented on nude images.
142 Bobby Chesney & Daniel Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 CALIF. L. REV. 1753, 1758 (2019) (“Deep-fake technology is the cutting-edge of that trend. It leverages machine-learning algorithms to insert faces and voices into video and audio recordings of actual people and enables the creation of realistic impersonations out of digital whole 6 cloth. The end result is realisticlooking video or audio making it appear that someone said or did something. Although deep fakes can be created with the consent of people being featured, more often they will be created without it.”).
143 Id.
144Id.
145 https://www.theverge.com/2019/6/27/18760896/deepfake-nude-ai-appwomen-deepnude-non-consensual-pornography. There are services specializing in photoshopping “cum shots” on women’s faces and creating fake nudes. Some services say that they may use the photos and post them online unless the person paying for them requests otherwise.