A NEW COMPACT FOR SEXUAL PRIVACY.

Date01 May 2021
AuthorCitron, Danielle Keats

TABLE OF CONTENTS INTRODUCTION 1766 I. UNDERSTANDING PRIVATE-SECTOR SURVEILLANCE OF 1773 INTIMATE LIFE A. Cataloging First-Party Collection 1773 1. Our Bodies: Our Sexual and Reproductive 1774 2. Adult Sites 1778 3. Dating Apps 1779 4. Personal Devices 1782 B. Surveying Third-Party Collection 1785 1. The Data Hand Off: Advertising and Analytics 1785 2. Data Brokers 1788 3. Cyber Stalking Apps 1790 4. Purveyors of Nonconsensual (Sometimes Fake) 1791 Porn II. ASSESSING THE DAMAGE AND LAW'S RESPONSE 1792 A. Undermining the Values Secured by Sexual 1792 Privacy B. Surveying the Damage 1800 C. Understanding the Legal Landscape 1804 1. Privacy Legislation 1804 2. Privacy Policy Making of Law Enforcers 1807 3. Private Suits 1812 4. Criminal Law 1814 III. REIMAGINING PROTECTIONS FOR INTIMATE 1816 INFORMATION A. Special Protections for Intimate Information 1817 1. Limits on Collection 1818 2. Use Restrictions 1824 3. Remedies: Halt Processing and the Data Death 1826 Penalty B. Objections 1829 1. Market 1830 2. Free Speech 1831 CONCLUSION 1838 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 adult sites. (2) Sex toys monitor the frequency and intensity of their owners' use. (3) Digital assistants record, transcribe, and store conversations in bedrooms and bathrooms. (4)

In some contexts, people enter into relationships with the firms tracking their intimate lives. (5) This is true when individuals subscribe to dating apps or purchase digital assistants. (6) 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. (7)

Whether anticipated and expected 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 "collection imperative." (8) For instance, analysts predict that within five years, the "femtech market"--menstruation, fertility, and sexual wellness apps--will be a $50 billion industry. (9)

Personal data is the coin of the realm for our everyday products and services. (10) At some level, people understand that online services are not actually free. (11) 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 (beyond not using the service). (12) Firms have every incentive to reinforce the status quo, from which they earn considerable profits. (13)

The surveillance of intimate life garners significant returns with little risk for businesses. (14) The opposite is true for individuals. (15) The private sector's collection, use, storage, and disclosure of intimate information undermines what I have elsewhere called "sexual privacy" and "intimate privacy"--the ways people manage the boundaries around intimate life. (16) Sexual (or intimate) privacy concerns information about, and access to, the body, particularly the parts of the body associated with sex, gender, sexuality, and reproduction. (17) It concerns information about, and access to, people's sex and gender; their sexual activities and interactions; their innermost thoughts, desires, and fantasies; and their sexual and reproductive health. (18) This includes on- and offline activities, interactions, communications, thoughts, and searches. (19) It concerns information about the decisions that people make about their intimate lives. (20)

This Article focuses on the collection, use, storage, and disclosure of information about sexual privacy, a crucial subset of sexual privacy. I will use the terms "intimate information" and "intimate data" interchangeably to refer to the subject matter of this piece: information about our bodies and health; our sexuality, gender, and sex; and our close relationships.

Maintaining and protecting the privacy of intimate information is foundational for interlocking interests, all of which are essential for us to flourish as human beings. (21) Privacy-afforded intimate information enables identity- and self-development. It frees us to let our guards down and engage in sexual and gender experimentation and expression, alone or with trusted others (including companies). (22) It gives us sexual autonomy. Intimate or sexual privacy also protects our dignity, enabling us to enjoy self-esteem and social respect. Then, too, it frees us to form close intimate relationships with friends, lovers, and family members. (23) As Charles Fried said long ago, privacy is the precondition for love and intimacy. (24) And, lastly, it secures equal opportunity. (25)

Our digital services and products could be built to protect our sexual privacy and the experimentation, expression, and intimacy that it makes possible. They could, but they are not. Why? Simply put, privacy is not profitable. For individuals, the costs are significant, though we do not have a real chance to understand the extent of the damage. Private-sector surveillance of intimate information strips individuals of the ability to decide who learns about their miscarriages, breakups, HIV infections, and sexual assaults, now and long into the future. It undermines people's self-esteem as they see themselves as intimate parts and not as whole selves. (26) When companies categorize and rate people as rape sufferers or escort users and nothing more, they give those individuals fractured identities. (27) People's self-expression and association are chilled. (28) Fearful of unwanted surveillance, people stop using dating apps, fertility trackers, or digital assistants. (29) They refrain from browsing sites devoted to gender experimentation, sexuality, and reproductive health. (30)

The damage may be hard for us to grasp as it is happening, but it is no less profound or real. Intimate data reveals people's physical and emotional vulnerabilities, which firms exploit to their advantage. (31) When intimate data is leaked or disclosed to hackers and criminals, individuals have an increased risk of reputational ruin, blackmail, and extortion. (32) When commercial hiring companies use intimate data to mine, rank, and rate candidates, people may be unfairly excluded from employment opportunities. (33) People's insurance rates may rise because algorithms predict their need for expensive fertility treatments or gender confirmation surgeries. (34) These risks are not evenly distributed across society. Women and marginalized communities disproportionately bear the burden of private-sector surveillance of intimate life. (35) Given the way that demeaning stereotypes work, intimate data will more often be used to disadvantage women, sexual minorities, and racial minorities rather than heterosexual white men. (36) The femtech market will surely have a disproportionate impact on women in healthcare, employment, and insurance decisions. (37) The majority of people appearing on sites devoted to revenge porn and deep fake sex videos are women and minorities. (38) For people with intersecting marginalized identities, the harm is compounded. (39) 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. (40)

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 associated with those practices. (41) For the most part, the collection, use, storage, and sharing of intimate data are enabled by this approach rather than restricted by it. (42) Tracking intimate data is not just permissible. It is viewed as beneficial. (43) But the truth of the matter is that human flourishing is being impaired, not secured.

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 to 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 our core capabilities hang in the balance.

All personal data needs protection, but even more so for intimate information. (44) Intimate information should not be collected or processed without meaningful consent--knowing, voluntary, and exceptional. Firms should not use intimate information to manipulate people to act against their interests. Firms should have robust obligations of confidentiality, discretion, and loyalty when handling intimate data. Available remedies should include injunctive relief ordering firms to stop processing intimate data until legal commitments are satisfied. Repeated violations can and should result in the "data death penalty"--forbidding a firm's handling of personal data now and in the future. (45) Given that with enough personal data we can infer intimate information, all personal data deserves strong protection. (46)

This Article has three parts. Part I provides a snapshot into the corporate surveillance of intimate life. It categorizes the surveillance into first- and third-party data collection. Part II highlights the damage that corporate intimate surveillance causes to the values that sexual privacy secures and the harm to human well-being that it inflicts. It...

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