A New Compact for Sexual Privacy
Danielle Keats Citron*
Introduction
Intimate life is under constant surveillance. Apps memorialize people’s menstruation cycles, fertility, and sexually transmitted infections.1 Advertisers and analytics firms track searches and browsing on porn sites. Sex toys monitor the frequency and intensity of their owners’ use.2 Digital assistants record, transcribe, and store conversations in bedrooms and bathrooms.3
In some contexts, people enter into relationships with the firms tracking their intimate lives.4 This is true when individuals subscribe to dating apps or purchase digital assistants. In other contexts, people have no connection with the firms handling their intimate data. Data brokers, cyber stalking apps, and sites devoted to nonconsensual pornography and deep fake sex videos come to mind.5
* Professor of Law, Boston University School of Law; Vice President, Cyber Civil Rights Initiative; 2019 MacArthur Fellow. I am grateful to William & Mary Law School for inviting me to give the George Wyeth Lecture, to faculty and students for their thoughtful comments, and to the law review for superb edits. Woodrow Hartzog, Mary Anne Franks, Neil Richards, Alan Butler, Sara Cable, Cameron Kerry, Kris Collins, Jennifer Daskal, John Davisson, Hany Farid, Ahmed Ghappour, Rebecca Green, Debbie Hellman, Laura Heymann, Ryan Kriger, Gary Lawson, Karen Levy, Tiffany Li, Linda McClain, Mike Meuer, Luis Alberto Montezuma, Jeanine Morris-Rush, Nancy Moore, Nate Oman, David Rossman, David Seipp, Kate Silbaugh, Jessica Silbey, Noah Stein, Peter Swire, Ari Waldman, and David Webber shaped the piece with their astute advice. Boston University Journal of Science & Technology Law kindly asked me to present this paper as the keynote of the 2019 data privacy symposium. Matt Atha, Rebecca Gutterman, Caroline Hopland, and Julia Schur provided extraordinary research assistance. Boston University School of Law, especially Dean Angela Onwuachi-Willig, Associate Dean Stacey Dogan, and Associate Dean David Webber. The MacArthur Foundation graciously supported this work.
1 Privacy International, No Body’s Business But Mine: How Menstruation Apps Are Sharing Your Data (Sept. 9, 2019) https://privacyinternational.org/long-read/3196/no-bodysbusiness-mine-how-menstruation-apps-are-sharing-your-data.
2 Steven 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/.
3 Jennings 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.
4 For instance, people subscribe to dating apps that record their sexual preferences and favorite positions, interest in threesomes, HIV status, and hookups. They use online services that facilitate testing for sexually transmitted infections and share the results with prospective partners. Kimberly Aquilina, STD testing? Yeah, There is an app for that, METRO (June 6, 2017), https://www.metro.us/body-and-mind/health/std-testing-syphilis-Biemapp.
Whether anticipated and desired or unknown and unwanted by individuals, the tracking of intimate information is poised for explosive growth. Profits drive what I have previously described as the “data collection imperative.”6 For instance, analysts predict that within five years, the “femtech market”—menstruation, fertility, and sexual wellness apps— will be a $50 billion industry.7
The coin of the realm for digital services is personal data.8 At some level, people understand that online services are not actually free.9 But the firms intentionally structure the deal in a manner that obscures its lopsided nature. Individual consumers cannot fully grasp the potential risks, and few options exist for those who do (well, beyond not using the service). Firms have every incentive to reinforce the status quo from which they earn considerable profits.10
The surveillance of intimate life garners significant returns with little risk for businesses.11 The opposite is true for individuals.12 The private sector’s collection, use, storage, and disclosure of intimate information undermines what I have elsewhere called sexual privacy—the ways people manage the boundaries around intimate life.13 Sexual privacy concerns the body, particularly the parts of the body associated with sex, gender, sexuality, and reproduction. It concerns any and all information about people’s sex, gender, sexuality, and sexual and reproductive health. This includes on- and offline activities, interactions, communications, thoughts, searches. It concerns the decisions that people make about their intimate lives. This Article tackles the collection, use, storage, and disclosure of information implicating sexual privacy, a crucial subset of sexual privacy that I will refer to as intimate information or intimate data.14
5 Kashmir Hill, Data Brokers were selling lists of Rape Sufferers, FORBES (December 19, 2013), https://www.forbes.com/sites/kashmirhill/2013/12/19/data-broker-wasselling-lists-of-rape-alcoholism-and-erectile-dysfunction-sufferers/#6aec189e1d53; Lorenzo Franceschi-Biccheirai & Joseph Cox, Inside the Stalkerware Surveillance Market, Where Ordinary People Tap Each Other’s Phones, MOTHERBOARD (April 18, 2017), https://www.vice.com/en_us/article/53vm7n/inside-stalkerware-surveillance-marketflexispy-retina-x; Danielle Keats Citron, Spying Inc., 72 WASHINGTON & LEE L. REV. 1243 (2015).
6 Danielle Keats Citron, A Poor Mother’s Right to Privacy: A Review, 98 B.U. L. REV. 1139, 1141 (2018).
7 Drew Harwell, Is Your Pregnancy App Sharing Your Intimate Data With Your Boss?, WASHINGTON POST (April 10, 2019).
8 Chris Hoofnagle & Jan Whittington, Accounting for the Costs of the Internet’s Most Popular Price, 61 UCLA L. REV. 606 (2017).
9 SHOSHANA ZUBOFF, THE AGE OF SURVEILLANCE CAPITALISM (2019); JULIE COHEN, BETWEEN TRUTH AND POWER (2019).
10Neil Richards & Woodrow Hartzog, The Duty of Loyalty (on file with author).
11 This pattern happens across the economy but is particularly problematic when it comes to sexual privacy, as I explore throughout this Article.
12 Id.; see generally STIGLER COMMITTEE ON DIGITAL PLATFORMS 11 (2019) (explaining that firms collecting and processing private information “do not internalize the harms associated with consumer privacy and security breaches. Nor do they internalize negative externalities or potential misuses of data that impact people who are not their own customers.”).
13Danielle Keats Citron, Sexual Privacy, 128 YALE L.J. 1871 (2019).
14 I will use the terms “intimate information” and “intimate data” interchangeably to refer to any and all information implicating sexual privacy.
Sexual privacy is foundational for our personhood and essential for our ability to flourish as human beings.15 It enables sexual and gender experimentation and identity development.16 It frees us to express ourselves and to form intimate relationships and associations.17 It secures human dignity and equal opportunity.18
Private-sector surveillance of intimate information strips individuals of their ability to decide who learns about their miscarriages, breakups, HIV infections, sexual assaults, and nude images. It undermines people’s selfesteem as they see themselves as intimate parts and not as whole selves. When companies categorize and rank people as rape sufferers or escort users and nothing more, they give those individuals fractured identities. People’s self-expression is chilled. Fearful of unwanted surveillance, people stop using dating apps, fertility trackers, or digital assistants. They refrain from browsing sites devoted to gender experimentation, sexuality, and reproductive health.
The harm can be profound. Intimate data reveals people’s physical and emotional vulnerabilities, which firms exploit to their advantage.19 When intimate data is leaked or disclosed to hackers and criminals, individuals face reputational ruin, blackmail, and extortion.20 When commercial hiring intelligence companies use intimate data to mine, rank, and rate, people may unfairly fail to obtain job interviews.21 People’s insurance rates may rise because algorithms predict their need for expensive fertility treatments or gender reassignment surgeries.22
15 Id.
16 Id. Sexual privacy protects the ability of people to be sexual on their own terms, including being asexual.
17 Id. See generally DANIELLE KEATS CITRON, HATE CRIMES IN CYBERSPACE 192-195 (2014).
18 Citron, Sexual Privacy, supra note, at.
19 See infra notes and accompanying text
20 Daniel J. Solove & Danielle Keats Citron, Risk and Anxiety: A Theory of Data-Breach Harms, 96 TEX. L. REV. 737, 739-45 (2018); Kate Fazzini, Ashley Madison Cyber-Breach, 5 Years Later, Users are Being Targeted with Sextortion Scams, CNBC (January 31, 2020),
https://www.cnbc.com/2020/01/31/ashley-madison-breach-from-2015-being-used-insextortion-scams.html.
21 Ifeoma Ajunwa & Daniel Greene, Platforms at Work: Automated Hiring Platforms and Other New Intermediaries in the Organization of Work, in WORK AND LABOR IN THE DIGITAL AGE, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3248675; Mar Hicks, Hacking the Cis-tem, IEEE ANNALS OF THE HISTORY OF COMPUTING, vol. 41, 20 (Jan.-Mar 2019). https://ieeexplore.ieee.org/document/8634814. See generally SAFIYA NOBLE, ALGORITHMS OF OPPRESSION (2018).
22See Jaden Urbi, “Some Transgender Drivers Are Being Kicked Off Uber’s App,” CNBC, August 8, 2018, https://www.cnbc.com/2018/08/08/transgender-uber-driversuspended-tech-oversight-facial-recognition.html; S.M. West, M. Whittaker & K. Crawford, DISCRIMINATING SYSTEMS: GENDER, RACE, AND POWER IN AI (April 2019), available at https://ainowinstitute.org/discriminatingsystems.pdf.
These risks are not evenly distributed across society. Women and marginalized communities disproportionately bear the burden of private-sector surveillance of intimate life. For instance, the fem-tech market will have a disproportionate impact on women in healthcare and insurance market.23 The majority of people appearing on sites devoted to revenge porn and deep fake sex videos are women and sexual minorities. For people with intersecting marginalized identities, the harm is compounded.24 The denial of equal opportunity in the wake of sexual privacy invasions is why I called for the recognition of “cyber civil rights” more than a decade ago.25
Despite the enormity of these potential harms, intimate information lacks meaningful legal protection. American law generally treats privacy as a consumer protection matter. It focuses on policing firms’ notice to consumers about their data practices and any deception concerning those practices. For the most part, the collection, use, storage, and sharing of intimate data is enabled by this approach rather than restricted by it. Tracking intimate data is not just permissible, it is viewed as normative.26
This Article offers a new compact for the protection of intimate information. As a start, we need to revise our understanding of the privacy afforded intimate life. Treating sexual privacy as a consumer protection problem underestimates the interests at stake. The surveillance of intimate life matters not just because firms fail to provide notice or engage in deceptive practices but also because they undermine autonomy, dignity, intimacy, and equality. It matters because people’s crucial life opportunities, including employment, education, housing, insurance, professional certification, and self-expression, are on the line. It matters because civil rights and civil liberties hang in the balance.
23 As discussed above, this is the explicit goal of fem-tech companies.
24 Joy Buolamwini & Timnit Gebru, “Gender Shades: Intersectional Accuracy Disparities in Commercial Gender Classification,” in Proceedings of the 1st Conference on Fairness, Accountability and Transparency (New York, 2018), 77–91, http://proceedings.mlr.press/v81/buolamwini18a.html; see also Citron, Sexual Privacy, supra note; Mary Anne Franks, Democratic Surveillance, HARV. J. L. & TECH (2015).
25 Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. REV. 61 (2009).
26 Richards & Hartzog, supra note, at.
All personal data needs protection, but even more so for intimate information.27 This approach aligns with the well-accepted approach to sensitive data that should apply to secure sexual privacy.28 Intimate information should not be collected or processed without meaningful consent—knowing, voluntary, and express consent. Firms should not use personal data to infer intimate information, nor should they use intimate information to manipulate people to act against their interests. Firms should have obligations of loyalty to the intimate data that they handle. Available remedies should include injunctive relief ordering firms to stop processing intimate data until legal commitments are satisfied. Repeated violations can and should face the data death penalty—forbidding a firm’s handling of personal data now and in the future.29
This Article has three parts. Part I provides a snapshot into the corporate surveillance of intimate life. It categorizes such surveillance into first-party data collection and third-party data collection. Part II highlights the damage corporate intimate surveillance causes to the values sexual privacy secures and the harm to human well-being it inflicts. It provides an overview of the legal landscape and the extent to which law is failing us. Part III offers a plan of action for the protection of intimate information. It situates privacy as a matter of civil rights and not just consumer protection. It provides guideposts for regulating the private sector’s surveillance of intimate information. It suggests affirmative obligations for firms in the collection, use, and storage of intimate data and the addition of injunctive relief.
27 There is plenty of terrific scholarship on the contours of strong baseline privacy protections. See Neil Richards & Woodrow Hartzog, The Pathologies of Consent, 96 WASH. U. L. REV. (2019); Woodrow Hartzog, The Inadequate, Invaluable Fair Information Practices, 76 MD. L. REV. 952 (2017); Neil Richards & Woodrow Hartzog, Taking Trust Seriously, 19 STAN. TECH. L. REV. (2016); Woodrow Hartzog, The Case Against Idealising Control, 4 EUR. DATA PROTECTION REV. 423 (2018); Richards & Hartzog, supra note. Cameron Kerry has been thoughtfully exploring the various proposals for data privacy reform at the federal level. See, e.g., Cameron F. Kerry, Protecting Privacy in an AI-Driven World, Brookings Institute (February 10, 2020), https://www.brookings.edu/research/protecting-privacy-in-an-aidriven-world/; Cameron F. Kerry, https://www.lawfareblog.com/data-collectionstandards-privacy-legislation-proposed-language; Cameron F. Kerry, A Federal Privacy Law Could Do Better than California’s, L.A. Times (April 25, 2019), https://www.latimes.com/opinion/op-ed/la-oe-kerry-ccpa-data-privacy-laws20190425-story.html; https://www.brookings.edu/blog/techtank/2019/06/26/whydata-ownership-is-the-wrong-approach-to-protecting-privacy/;
28 Paul Ohm, Sensitive Information, 88 S. CAL. L. REV. 1125, 1128 (2015); 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 (2007).
29 Thanks to Woodrow Hartzog for suggesting the concept of the data death penalty to describe stop processing orders.
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