Sexual Privacy

83 Pages Posted: 23 Aug 2018 Last revised: 13 Feb 2019

See all articles by Danielle Keats Citron

Danielle Keats Citron

University of Maryland Francis King Carey School of Law; Yale University - Yale Information Society Project; Stanford Law School Center for Internet and Society

Date Written: August 17, 2018

Abstract

Those who wish to control, expose, and damage the identities of individuals routinely do so by invading their privacy. People are secretly recorded in bedrooms and public bathrooms, and “up their skirts.” Such images are used to coerce people into sharing nude photographs and filming sex acts under the threat of public disclosure. People’s nude images are posted online without permission. Machine-learning technology is used to create digitally manipulated “deep fake” sex videos that swap people’s faces into pornography.

Each of these abuses is an invasion of sexual privacy—the behaviors and expectations that manage access to and information about the human body, intimate activities, and personal choices about the body and intimate information. Most often, women, nonwhites, sexual minorities, and minors shoulder the abuse.

Sexual privacy, this Article contends, is a distinct privacy interest that warrants recognition and protection. It serves as a cornerstone for sexual autonomy and consent. It is foundational to intimacy, and its denial results in the subordination of marginalized communities.

Traditional privacy law is increasingly insufficient to protect this interest. Its efficacy is eroding just as digital technologies magnify the scale and scope of the harm. The Article suggests a new approach to protecting sexual privacy that focuses on law and markets. Law should provide federal and state penalties for privacy invaders, remove the statutory immunity from liability for certain content platforms, and work in tandem with hate crime laws. Market efforts should be pursued if they enhance the overall privacy interests of all involved.

Keywords: sexual privacy, revenge porn, deep fake, section 230

Suggested Citation

Citron, Danielle Keats, Sexual Privacy (August 17, 2018). Yale Law Journal, Forthcoming; U of Maryland Legal Studies Research Paper No. 2018-25. Available at SSRN: https://ssrn.com/abstract=3233805

Danielle Keats Citron (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

Yale University - Yale Information Society Project

127 Wall Street
New Haven, CT 06511
United States

Stanford Law School Center for Internet and Society

Palo Alto, CA
United States

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