74 Pages Posted: 23 Aug 2018 Last revised: 5 Dec 2018
Date Written: August 17, 2018
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.” They are coerced into sharing nude photographs and filming sex acts under the threat of public disclosure of their nude images. 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.
At the heart 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. More often, women, nonwhites, sexual minorities, and minors shoulder the abuse.
Sexual privacy 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. Its denial results in the subordination of marginalized communities. Traditional privacy law’s efficacy, however, is eroding just as digital technologies magnify the scale and scope of the harm. This Article suggests an approach to 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
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