The invocation of privacy is often a smokescreen for privacy-annihilating activities. Tech giants exploit consumers’ online privacy and civil rights, harvesting our intimate details for profit and imperiling our rights. The only privacy Facebook, Amazon, Google, and the like are interested in safeguarding is their own, pushing back on regulators under the guise of protecting “trade secrets.”
For certain powerful men, too, privacy means keeping their misdeeds under wraps. The disgraced film mogul Harvey Weinstein benefited from what The New York Times has called a “protection racket,” or a “network of aggressive public relations flacks and lawyers who guard the secrets of those who employ them and keep their misdeeds out of public view.” Matt Lauer, who was fired from NBC News in 2017, had a button under his desk that conveniently prevented interruption while he had inappropriate relations with female employees. Women who fight back against assaulters often end up with an out-of-court settlement and a confidentiality agreement: a battening down of secrecy. All this cloak-and-dagger business gives privacy a bad rap—it’s a debased currency that licenses men to oppress women, monopolies to oppress consumers, and powerful people to guard their profits at the expense of everyone else.
It didn’t have to be this way. The legal concept of the right to privacy has its origin in an 1890 Harvard Law Review article by Louis Brandeis and Samuel Warren, in which the authors called for the legal system to protect the “right to be let alone” in the “sacred precincts of private and domestic life.” The article relied on a psychological insight: If information pertaining to an individual’s private life is made public, it can damage the person’s “estimate of himself.” As Brandeis and Warren wrote, individuals and society are harmed when “numerous mechanical devices … make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’ ” (The definition of privacy was personal for Warren, whose brother Ned was openly gay. Journalists have speculated that his authorship of the article was in part motivated by a desire to protect his family from the sensationalism of the penny press.) Scholars have called the article “the foundation of American privacy law” and “one of the most famous law review articles ever written.” It gave women in the early 20th century the ability to use tort law to object to their images being used in films and ads without their consent.
How privacy torts morphed from a potentially liberatory tool into an overly narrow set of claims typically used in defense of the powerful—and how we might turn the tide—is part of the story that Danielle Keats Citron, a legal scholar and vice president of the Cyber Civil Rights Initiative, tells in her authoritative new book, The Fight for Privacy. Citron’s work arrives when conversations about digital privacy have reached a new pitch. According to the Pew Research Center, a majority of Americans think that the risks of personal data collection outweigh the benefits, and they support more regulation of what companies can do with their data. In Congress, a bipartisan group of legislators proposed a bill allowing users to opt out of targeted advertisements and sue internet companies that sell their data without their permission. And last month, the Federal Trade Commission announced the “Advanced Notice of Proposed Rulemaking,” which would build guardrails to protect consumer privacy in the U.S. Such provisions are long overdue. Yet there’s a shady grove of the surveillance economy that has received much less attention from lawyers and legislators: intimate privacy.
The Fight for Privacy beams a flashlight on this neglected area. “Intimate privacy” has been under-theorized as a legal concept; Citron provides much-needed elucidation. For her, the term is both a descriptive one—the set of norms around our intimate lives—and a normative one: “a precondition” to a meaningful life. It refers to “the extent to which others have access to, and information about, our bodies; minds; health; sex, sexuality, and gender; and close relationships,” and is, at heart, a “moral concept.” Citron’s book provides a legal pathway for securing our right to intimate privacy in the digital era and for recognizing that it is as crucial as our other civil liberties—no more, no less. With Roe v. Wade overturned and the potential for women’s intimate data to be used to investigate or prosecute potential abortion cases, such legal clarity is more urgent than ever. As Citron has noted in Slate, Dobbs v. Jackson Women’s Health Organization not only eviscerates federal protections for reproductive autonomy, but also “augurs a future where no aspect of our intimate life is ours … where every detail about our bodies, health, and relationships is amassed and sold.”
The Fight for Privacy builds on some of the arguments Citron made in her first book, Hate Crimes in Cyberspace, in which she argued that, just as we have moved from Web 1.0 (a read-only internet) to Web 3.0 (a space that offers online experiences tailored to our habits and preferences), cyberharassment and cyberstalking have evolved into what she calls “Hate 3.0,” a form of “personalized hate, as damaging as this new stage of the web aims to be productive.” She marshaled evidence showing the emotional harm that accompanies such online harassment: Post-traumatic stress, panic attacks, anorexia, and depression commonly trail victims. Compounding the emotional distress, victims often incur substantial legal fees and moving expenses, and pay higher out-of-pocket costs for doctor’s visits.
Since Hate Crimes was published in 2014, feminist writers and thinkers have spilled more ink on the topic of online misogyny. This year alone saw the publication of How to Be a Woman Online: Surviving Abuse and Harassment, and How to Fight Back by Nina Jankowicz, which notes that “to be a woman online is an inherently dangerous act,” and Joanna Walsh’s Girl Online: A User Manual. The publication of Jankowicz’s book illustrates the pervasiveness of online harassment. Around the book’s publication in April, the Homeland Security Department announced Jankowicz as the head of its new Disinformation Governance Board. Immediately, far-right influencers worked to discredit her, subjecting her to a bombardment of personal attacks, including comments on the far-right social network Gab promising to greet her with “Mr. 12 Gauge Slugs” and lamenting the lack of a group of trained assassins to kill her. The whole episode served to make the solutions that Jankowicz puts forth in her book for battling such sustained online abuse seem pallid. Using anti-doxing services like DeleteMe or taking a screenshot of an offending comment are stopgap measures that put the burden on the victim rather than the perpetrator of harassment.
Citron’s new book makes an important intervention in the larger conversation about digital privacy and harassment. As she notes, the data justice crisis metastasized during the coronavirus pandemic. A government agency in Australia and the U.S.-based Cyber Civil Rights Initiative each noted an increase of more than 200 percent in cases of nonconsensual pornography. Citron notes that of the 50,000 deepfake videos posted online in 2020, about 95 percent placed unrelated women’s faces onto pornographic images.
Journalists and civilians in other countries—especially authoritarian “regimes—have also been targeted in retaliation for documenting human rights abuses, such as a journalist in India whose face was doctored onto porn clips that were “shared with nearly half of the phones in India” after she criticized Prime Minister Narendra Modi. Her home address and cellphone number were made public, and she received rape and death threats. She stopped writing.
Citron centers the stories of women subjected to intimate surveillance, abuse, and violence, including a high school principal in New York City whose ex-boyfriend dispatched sexually explicit photos of her to the New York Post. After the tabloid published them, the principal was suspended for bringing “widespread negative publicity, ridicule, and notoriety” to the school and failing to secure her photos. Such reasoning is obtuse, as Citron notes: “According to this argument, if a shopkeeper’s safe is broken into by thieves, then the shopkeeper is to blame for not having a better safe.”
In another case, a New York financial adviser surreptitiously recorded his sexual encounters with three different women. He then uploaded the videos to his YouTube and Vimeo accounts to share with friends. His sentence? Ten days of community service.
For victims, such violations carry lifelong consequences. As Citron argued in Hate Crimes in Cyberspace, the internet is “a force multiplier”; it not only pushes some to act more violently than they would have offline, but also extends the life of malicious posts. Search engines instantly call up images created years earlier for a potentially limitless audience, used at the behest of cybermobs competing to be the most abusive. In the case of one individual Citron interviewed, “Anna” could not bring herself to start dating again two years after her ex-husband posted her intimate videos and photos on fake Facebook and Twitter accounts and sent them to her colleagues at the school where she taught.
The internet is often referred to as a virtual Wild West, an ungovernable free speech zone. Citron holds no truck with that idea. Just as we have norms and rules for workplaces and public spaces, the internet should be subject to regulation. The detrimental effects of harassment do not cease to exist simply because a victim has logged off.
Citron singles out Section 230 of the Communications Decency Act for shielding social media companies from liability and providing a fig leaf for malefactors to “host posts by civil rights protestors, like members of the #MeToo movement, and child predators.” Section 230 reform is mostly associated with congressional Republicans, who suggest narrowing it to “protect free speech” by penalizing tech companies who supposedly discriminate against conservatives. But Citron believes that well-intentioned reform would tackle cyberstalking, excluding bad actors from the act’s safe harbor provision.
Citron, who helped draft Maryland’s law criminalizing the nonconsensual publication of nude images, touts the notion, first articulated by Warren and Brandeis, of the “right to be let alone.” She couples such legal evaluations with a need for greater algorithmic transparency, given that intimate data has been or can be used to feed self-harm videos to those whose anxiety and depression are worsening or reveal users’ sexual orientations to discriminatory governments or employers, for example. The more that algorithms are used to determine people’s eligibility for benefits, jobs, housing, credit, insurance, and other life necessities, the greater the need for transparency around such automated processes to correct for biases and disparate, discriminatory impacts inherent in these systems.
In centering the original Brandeisian definition of a right to privacy, Citron hopes to bypass the abuses of privacy law by suggesting that lawmakers and lawyers hark back to its original intent. Some may find this unconvincing, or about as naive as Citron’s belief that with the right incentive structures in place, data brokers and advertisers can become “data guardians” rather than agents of espionage. While parts of her argument remain underdeveloped, Citron does prove that the legal tools available to victims—including tort and consumer protection laws—are anemic. They’re too narrow, requiring victims to prove that privacy invaders intended to harm, a notoriously difficult thing to demonstrate. More vexing still are networked technologies evolving at hyperspeed, so threats to intimate privacy outpace legal protections.
That victims seek civil redress—including “claims for negligence, breach of contract, unfair and deceptive actions, and breach of warranty”—and fail speaks to the need for “baseline protections for intimate privacy.” Citron makes sound suggestions, like upgrading cyberflashing (sending unsolicited sexually explicit images via text or AirDrop on Apple phones) and the nonconsensual exploitation of intimate images to felonies rather than misdemeanors. Plaintiffs should be able to sue under an alias (to protect their privacy) and get injunctive relief (in the form of removal, blocking, or de-indexing of nonconsensual images). Citron sensibly advocates for a “Do Not Sell My Intimate Data” registry, arguing too that individuals must obtain the digital equivalent of a “learner’s permit” from social media companies to use their sites. There would be an onus on companies to regularly remind users about the importance of intimate privacy and to follow up with “refresher courses.”
Ultimately, cyberharassment undermines equality of opportunity; it jeopardizes individuals’ ability to enjoy their lives, seek employment, go to school, and pursue other activities free from discrimination. All 50 states have laws on the books to protect online security, such as electronic health record protections and identity theft safeguards, and 48 have criminalized nonconsensual porn. California, Hawaii, New York, and Virginia have even made circulating deepfakes or digitally manipulated intimate images online a crime. This, Citron would say, is a good start, but we should aspire to broader protections for intimacy, in the vein of the Universal Declaration of Human Rights, which recognizes the “right to privacy” as fundamental. Rather than treating intimate privacy violations in a piecemeal fashion—which lends itself to a grab bag of weak statutes—criminal law ought “to treat the constellation” of these problems as one. The right to intimate privacy should be enshrined in a landmark federal online privacy law that would protect individuals against abusive practices. The hope is that enforcing it as such would have expressive value—it would give us a common language to talk about the importance of digital privacy. It would say to data brokers that dignity matters more than profits. It would tell government that the over-collection of data erodes equality. Such a law would thunder that intimate privacy is a right.