ARTICLE CONTENTS INTRODUCTION 1874 1. SEXUAL PRIVACY 1879 A. Understanding the Concept of Sexual Privacy 1879 B. Highlighting Sexual Privacy's Value 1881 1. Sexual Privacy as Securing Autonomy 1882 2. Sexual Privacy as Enabling Intimacy 1888 3. Sexual Privacy as Protecting Equality 1890 a. Expressive Power 1890 b. Concealment 1894 c. Beyond Equality 1897 C. Identifying Sexual-Privacy Interests 1898 D. Privacy-Privacy Trade-offs 1902 II. SEXUAL-PRIVACY INVASIONS 1904 A. Brief Historical Background 1905 B. Sexual Privacy in the Digital Age 1908 1. Digital Voyeurism 1909 2. Up-Skirt Photos 1914 3. Sextortion 1915 4. Nonconsensual Pornography 1917 5. Deep-Fake Sex Videos 1921 C. Harm 1924 III. LAW AND MARKETS 1928 A. Law's Role 1929 1. Traditional Law 1929 a. Criminal Law 1931 b. Civil Law 1933 c. First Amendment Concerns 1936 2. Shortcomings 1938 3. Comprehensive Response 1944 a. Legislative Suggestions 1947 b. Privacy Torts 1950 c. Section 230 Reform 1952 B. Markets 1954 1. Facebook Hashes 1955 2. Immutable Life Logs 1958 CONCLUSION 1960 INTRODUCTION
The barriers that protect information about our intimate lives are under assault. Networked technologies are exploited to surveil and expose individuals' naked bodies and intimate activities. Home devices are used to spy on intimates and ex-intimates. (1) Hidden cameras film people in bedrooms and restrooms, and "up their skirts" without permission. People are coerced into sharing nude images and making sex videos under threat of public disclosure. (2) Sexually explicit images are posted online without their subjects' permission. (3) Technology enables the creation of hyper-realistic "deep fake" sex videos that insert people's faces into pornography. (4)
At the heart of each of these abuses is an invasion of sexual privacy--the social norms (behaviors, expectations, and decisions) that govern access to, and information about, individuals' intimate lives. Sexual privacy concerns the concealment of naked bodies and intimate activities including, but not limited to, sexual intercourse. It involves personal decisions about intimate life, such as whether to entrust others with information about one's sexuality or gender, or whether to expose one's body to others. As I am using the term, sexual privacy is both descriptive and normative. It concerns how the social norms surrounding individuals' intimate lives are currently experienced and how they should be experienced.
Sexual privacy sits at the apex of privacy values because of its importance to sexual agency, intimacy, and equality. (5) We are free only insofar as we can manage the boundaries around our bodies and intimate activities. With sexual privacy, we can experiment with our bodies, our sexuality, and our gender. (6) We can author our intimate lives and be seen as whole human beings rather than as just our intimate parts or innermost sexual fantasies. (7)
Without sexual privacy, we have difficulty forming intimate relationships. We develop relationships of love and caring through a process of mutual self-disclosure and vulnerability. (8) Partners reveal their innermost selves to one other with the expectation that they will protect each other's intimate information. (9) When a partner's confidence is betrayed, it can be difficult to trust others in the future. (10)
Equal opportunity is on the line as well. Women and individuals from marginalized communities shoulder the brunt of the abuse. (11) They suffer stigmatization in the wake of sexual-privacy invasions. (12) They lose their jobs and have difficulty finding new ones. (13) They feel humiliated and ashamed. Sexual-privacy violations deny them the ability to enjoy life's crucial opportunities.
Despite sexual privacy's importance, reforms have proceeded slowly. This is partly because we lack a clear conception of what sexual privacy is and the harms wrought by its invasion. Policy makers and companies have addressed particular abuses only in isolation. One day, the discussion centers on nonconsensual pornography; the next, it centers on sextortion; and so on. Because the full breadth of the harm is not in view, policy makers fail to realize the costs of these violations.
Social attitudes have also stymied reform efforts. Some contend that sexual privacy merits no attention because sexual-privacy invasions involve problems of victims' making. (14) Others warn that efforts to protect sexual privacy reinforce outmoded views of sexual modesty and shame (15) or that sexual privacy would simply hide the abuse of the vulnerable. (16)
Yet sexual privacy need not work this way. (17) A comprehensive account of sexual privacy would bring into view the full breadth of the harm inflicted by its invasion. It would allow us to appreciate the true nature of social attitudes dismissing sexual privacy as unimportant. Saying that victims "asked for it" is just another way that society has long trivialized harms suffered by people from marginalized communities. (18) Far from re-inscribing shame, the identification and protection of sexual privacy would affirm people's ability to manage the boundaries of their intimate lives. It would convey respect for individuals' choices about whom they entrust with their bodies and intimate information.
But would the protection of sexual privacy inevitably conceal abuse of the vulnerable? Past need not be prologue. Courts once immunized male batterers from assault law in the name of "family privacy." (19) Missing from this privacy calculus was the invasion of battered women's sexual privacy. In the home, battered women were subject to unwanted inspection, exhibition, and abuse. Their bodies were not their own (20)--society protected male batterers' privacy interests at the expense of battered women's sexual privacy. (21) Courts should have considered the sexual-privacy interests of all the parties involved--including women in the home. Today, law and society must take full account of all individuals' privacy interests, with a clear understanding of sexual privacy's distinct importance.
Now is the time to conceptualize sexual privacy clearly and to commit to protecting it explicitly. Traditional privacy law's efficacy is eroding as digital technologies magnify the scale and scope of the harm. Thanks to networked technologies, sexual privacy can be invaded at scale and from across the globe. (22) Search engines make the fruits of privacy violations easily accessible, (23) and in some cases, the damage can be permanent. (24) But neither tort law nor criminal law has protected sexual privacy as clearly or as comprehensively as it should. (25) Some victims are left with little or no legal redress, while abusers are punished in an inconsistent manner. For instance, neither criminal laws nor the privacy torts are likely to cover up-skirt photos, and the criminal law's coverage of sextortion turns on the victim's age. (26)
This Article charts out the meaning of sexual privacy as a distinct concept and describes its value to individuals, groups, and society. It contends that sexual privacy warrants recognition and protection as a foundational privacy interest. The Article suggests a path for reform that would fill gaps in the existing protections that have enabled a culture of impunity. In particular, the Article focuses on sexual-privacy invasions at the hands of private individuals, leaving discussion of governmental and corporate sexual-privacy invasions for later work. (27)
Why concentrate on interpersonal wrongdoing? Current laws already address some interpersonal sexual-privacy invasions--no doubt because the harm suffered is viscerally palpable--and so provide a foothold to assess the existing legal protections of and norms concerning sexual privacy.
The Article proceeds in three parts. Part I charts out the concept of sexual privacy--its descriptive meaning, normative significance, and interests protected. The values that sexual privacy protects--autonomy, intimacy, and equality--offer criteria for identifying sexual-privacy interests, thus allowing policy makers and courts to focus their efforts. This Part provides guidance for how to make inevitable trade-offs when sexual-privacy interests clash with other privacy interests.
Part II highlights sexual-privacy invasions in the past and the present. Women and marginalized communities have disproportionately experienced these invasions throughout history. In the past, law and norms forced the exposure of enslaved black men and women's bodies. Middle- and upper-class white women enjoyed little sexual privacy in the home. For far too long, sexual minorities could not expect privacy in bedrooms and public bathrooms. Today, in the digital age, sexual-privacy invasions have taken new forms, including video voyeurism, up-skirt and down-blouse photos, sextortion, nonconsensual pornography, and deep-fake sex videos. As this Part shows, sexual-privacy invasions inflict profound harm, impacting nearly every aspect of people's lives.
Part III considers possible legal and market responses to sexual-privacy invasions. Existing criminal and civil laws are deficient. Far too many sexual-privacy invasions are misdemeanors that law enforcement ignores or that are subject to no penalty. Some victims may bring civil suits against their attackers, but privacy law fails to provide meaningful redress when perpetrators are judgment proof. The parties best situated to minimize the harm--online platforms--have no legal incentives to intervene because they enjoy broad immunity from liability, even for sexual-privacy invasions that they enable and encourage. Federal and state law should instead prohibit all manner of sexual-privacy invasions, enhance penalties for bias-motivated invasions, and remove the immunities enjoyed by certain content platforms. Privacy-tort law should be interpreted to provide meaningful redress for sexual-privacy invasions. Of course, law can only do so much, and legal overreach...