Link Search Menu Expand Document
Cybersecurity Research

This is the mobile-friendly web version of the original article.

A New Compact for Sexual Privacy

Boston University School of Law

Public Law & Legal Theory Paper No.

20-20

June 2020

Danielle K. Citron

Professor of Law, Boston University School of Law; Vice President, Cyber Civil Rights Initiative; 2019 MacArthur Fellow. Twitter

Boston University School of Law

Forthcoming in William & Mary Law Review

  1. Abstract

Abstract

Intimate life is under constant surveillance. Firms track people’s periods, hot flashes, abortions, sexual assaults, sex toy use, sexual fantasies, and nude photos. Individuals hardly appreciate the extent of the monitoring, and even if they did, little can be done to curtail it. What is big business for firms is a big risk for individuals. The handling of intimate data undermines the values that sexual privacy secures—autonomy, dignity, intimacy, and equality. It can imperil people’s job, housing, insurance, and other crucial opportunities. More often, women and minorities shoulder a disproportionate amount of the burden.

Privacy law is failing us. Our consumer protection approach offers little protection. Not only is the private-sector’s handling of intimate information largely unrestrained, but it is treated as normative. This Article offers a new compact for the protection of sexual privacy. Civil rights and liberties, along with consumer protection, is at stake when firms amass intimate data. The new compact seeks to stem the tidal wave of collection, restrict certain uses of intimate data, and expand the suite of remedies available to courts. It draws upon the lessons of civil rights law in moving beyond procedural protections and in authorizing injunctive relief, including orders to stop processing intimate data.

INTRODUCTION

I. UNDERSTANDING PRIVATE-SECTOR SURVEILLANCE OF INTIMATE LIFE

A. Cataloging First-Party Collection

  1. Sexual and Reproductive Health
  2. Porn Sites
  3. Dating Apps
  4. Personal Devices

B. Surveying Third-Party Collection

  1. The Data Hand-Off: Advertising and Analytics
  2. Data Brokers
  3. Cyber Stalking Apps
  4. Purveyors of Nonconsensual (Sometimes Fake) Porn

II. ASSESSING THE DAMAGE AND LAW’S RESPONSE

A. Undermining the Values Secured by Sexual Privacy

B. Surveying Harm

C. Understanding the Legal Landscape

  1. Privacy Legislation
  2. Privacy Policymaking of Law Enforcers
  3. Private Suits
  4. Criminal Law

III. REIMAGINING PROTECTIONS FOR INTIMATE INFORMATION

A. Reframing the Conversation

B. Special Protections for Intimate Information

  1. Limits on Collection
  2. Use Restrictions
  3. Remedies: Halt Processing and the Data Death Penalty

C. Objections

  1. Market
  2. Free Speech

CONCLUSION

Table of contents