Privacy Injunctions

• Publication year: 2022

Privacy Injunctions

Danielle Keats Citron

PRIVACY INJUNCTIONS

Danielle Keats Citron^*

Abstract

Violations of intimate privacy can be never ending. As long as nonconsensual pornography and deepfake sex videos remain online, privacy violations continue, as does the harm. This piece highlights the significance of injunctive relief to protect intimate privacy and legal reforms that can get us there. Injunctive relief is crucial for what it will say and do for victims and the groups to which they belong. It would have content platforms treat victims with the respect that they deserve, rather than as purveyors of their humiliation. It would say to victims that their intimate privacy matters and that sites specializing in intimate privacy violations are not lawless zones where their rights can be violated. For victims, the journey to reclaim their sexual and bodily autonomy, self-esteem and social esteem, and sense of physical safety proceeds slowly; the halting of the privacy violation lets that process begin. The crux of my proposal is straightforward: Lawmakers should empower courts to issue injunctive relief, directing content platforms that enable intimate privacy violations to remove, delete, or otherwise make unavailable intimate images, real or fake, that were hosted without written permission. They should amend Section 230 of the Communications Decency Act so that these enabling platforms can be sued for injunctive remedies. Market developments can fill some of the gaps as we wait for laws to protect intimate privacy as vigorously and completely as they should.

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Introduction.............................................................................................956

I. Never Ending Violation...............................................................960

A. The Suffering ............................................................................ 960
B. Law's Limits ............................................................................. 965

II. Reforming Available Remedies..................................................968

A. Proposals.................................................................................. 968
B. First Amendment Challenges.................................................... 972
C. International Synergies ............................................................ 975

III. Market Interventions..................................................................978

A. Overview of Recent Developments ........................................... 979
B. International Hash Database ................................................... 982

Conclusion.................................................................................................983

Introduction

"I want those photos to disappear."¹ I have heard that sentiment countless times from people whose intimate images were shared online without their consent² —Carla included.³

As she headed to work, Carla started getting texts from people she did not know. The messages were basically the same. Just a question: Was she free for sex now? She immediately thought of her ex who warned her that she would regret ending their relationship. Could this be related?

So, Carla did what anyone would do in her position—she Googled her name. Behold, the first page featured links to adult sites and message boards displaying her nude and partially undressed photographs next to her name and cellphone number. Carla then checked her email. A colleague had sent an email saying that her "new" Facebook profile (which she had not created) included her nude photo. Her colleague asked, "Did you mean to post that or was it a goof?" That

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the posting was unintentional was the better guess: Carla was a teacher whose Facebook community included former students. But, of course, it was not Carla's doing at all—her ex created a fake profile in her name and posted her intimate images without her permission.

There was more. Carla's ex had created a fake account on the dating app Tinder and sent her intimate photos to men who believed they were talking to her. He ran online ads claiming that Carla was "looking for hook ups." That day and in the days that followed, strange men came to Carla's house, saying that they were there "for their date." Through her locked door, Carla explained what her ex had done. The men were civil, all things considered. No one had hurt her—yet.

Carla and I talked about many things, but front of her mind was getting the intimate images taken down or somehow obscured. Some sites prohibit nonconsensual intimate images in their terms of service (TOS), so they would be inclined to remove them.⁴ She could report the fake account to Tinder, which bans harassment.⁵ She could ask Google to de-link the nonconsensual intimate images in searches of her name.⁶

Carla soon discovered that too many other sites had no intention of helping her. The entire business of these sites was hosting nonconsensual intimate images.⁷ Their viewers expected to see a continuous stream of nude images. Without visitors, they could not earn advertising revenue.⁸ That is why those sites ignored Carla's request to take down her intimate images.

Sending takedown requests posed other risks that Carla had not yet experienced, beyond wasting her time. A site could compound the damage by posting her takedown request. That would draw even more attention to her intimate images. I had seen that in several cases—it was cruel in the extreme.

Existing law was not on Carla's side, at least not yet. If a magazine published hard copies of Carla's nude images submitted by her ex, Carla could bring tort claims against the magazine.⁹ In that lawsuit, she could ask the court to stop the magazine from selling copies with her nude images, a request known as

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injunctive relief.¹⁰ But because those activities happened online, Carla had no legal remedy. A federal law passed in 1996—Section 230 of the Communications Decency Act (CDA)—shielded sites from liability related to their publication of user-generated content.¹¹ Sites that encourage and profit from third-party illegality like nonconsensual, intimate images have enjoyed immunity from liability under that law.¹² The legal shield secured by Section 230 would stop Carla's lawsuits against the sites peddling her intimate images.

What Carla experienced was a violation of her intimate privacy—the norms that set and fortify the boundaries around intimate life.¹³ Intimate privacy concerns the extent to which others have access to, and information about, our bodies; minds (innermost thoughts, desires, and fantasies); health; sex, sexual orientation, and gender identity and expression; and close relationships.¹⁴ It includes our online and offline activities, interactions, communications, and searches.¹⁵ Intimate privacy is descriptive but also a normative concept: it captures the kind of privacy that we want, expect, and deserve at different times and in different contexts.¹⁶

Intimate privacy is of the utmost importance.¹⁷ It is among the foundational types of privacy that deserve robust protection. It is the precondition to self-

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development, human dignity, and close relationships.¹⁸ It sets the course for our current and future selves.¹⁹ It is indispensable for identity development, love, belonging, and equality.²⁰

Although intimate privacy is fundamental to our lives, our failure to appreciate its significance has led to its under-protection. As I argue in my forthcoming book, intimate privacy should be recognized and protected as a civil right, by which I mean a basic entitlement for all and a commitment to non-discrimination.²¹ Understanding intimate privacy as a civil right would clarify its moral significance. It would draw proper attention to the structural damage wrought by its violation—a majority of victims are women, minorities, or LGBTQ+ individuals, often with multiple, intersecting marginalized identities (as was true for Carla).²² It would give us the vocabulary to express clearly and unequivocally to victims and the groups to which they belong that their intimate privacy matters, that the unwanted exposure of their intimate images will not be tolerated, and that content platforms bear responsibility to protect them.²³

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Recognizing intimate privacy as a civil right would lay the foundation for its vigorous protection. Reform efforts should include the adoption of legislation recognizing the propriety of injunctive relief in cases involving intimate privacy violations. Congress should amend Section 230 so that sites and other content platforms that enable intimate privacy violations can be sued for injunctive relief and attorney's fees.

This piece explores the role of the privacy injunction in protecting intimate privacy.²⁴ Part I highlights the ongoing nature of certain intimate privacy violations and the harm that is continuously inflicted. Part II proposes legal reforms and notes some First Amendment concerns and parallel efforts outside the United States. Part III suggests a potential market development that can provide relief as we wait for the law to protect intimate privacy as vigorously and completely as it should. Legal reform and market efforts, domestic and international, would help victims mitigate the damage, even though they could not undo the harm already suffered.

I. NEVER ENDING VIOLATION

This Part explores the damage that individuals suffer when their intimate images, real or fake, are posted online and how a federal law has insulated from liability the parties in the best position to help minimize the damage.

A. The Suffering

When people's intimate images—whether real (like nonconsensual pornography) or fake (like deepfake sex videos)—are disclosed without their permission, the damage can be profound. To better understand why, we need to acknowledge the visceral power of photographs and video recordings.

Photographic and recorded images grab our...