From time immemorial, privacy has been an important, necessary condition for human development. The ability to experiment with who we are, explore our innermost thoughts and desires, and to set boundaries around relationships allows us to develop as full persons engaging in and with greater society. Unfortunately, technological change and lack of legal protections has led privacy to come under assault, with our most intimate information subject to data collection, harvesting, and selling to third parties, as well as surveillance by private actors out to extort. Exploring this dangerous trend and developing a robust framework for securing and protecting our intimate data grounded in civil rights law was the topic that Danielle Citron, Jefferson Scholars Foundation Schenck Distinguished Professor in Law, discussed in the final talk of 2021’s Ten Years Hence series.
Going on an adult website, using a dating or fitness app, or just using a search engine to query medical information will subject a person to ad tracking and data harvesting. Intimate information about one’s sexuality, gender, or body becomes monetized and sold. In countries like the United States, such data collection is treated as a consumer protection matter: The presumption is that companies and sites have permission to gather, and sell personal data, with only a few barebones legal protections for individuals.
At the same time, technological change has made both video voyeurism and non-consensual pornography growing problems for the protection of privacy and intimate data. Portable cameras with WiFi connections are now smaller (and thus easier to hide) and cheaper than ever before, leading women in many parts of the world to take precautions when using public restrooms, for example. At the same time, sites devoted entirely to so-called “revenge porn” have proliferated and made profits off of non-consensual pornography, and in the U.S. are able to do so under the protection of Section 230 of the Communications Decency Act, which grants immunity to sites when it comes to user-generated content. What’s worse, many individuals now find themselves a subject of a “sextortion” campaign, where a malicious actor gets hold of intimate photos or video and threatens to share it with a victim’s loved ones or coworkers unless the victim provides more intimate content or money.
The way forward, Citron argued, is to avoid piecemeal legislation aimed at tackling mere bits or parts of this phenomenon, and instead focus on addressing the core issue of intimate data and privacy protection legally by framing and recognizing it as a civil right, a course correction which will necessarily involve reform of Section 230. At the same time, legal remedies will only take us so far. Tech companies, especially social media platforms, need to move away from the “move fast and break stuff” mindset when it comes to protecting users’ privacy, and we as users need to educate ourselves on the fundamental importance of intimate privacy and instill in ourselves respect for others when it comes to the issue.
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