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, expectations, and choices that manage access to and information about the human body, sex, sexuality, gender, and intimate activities. 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 human dignity and 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 all types of sexual-privacy invasions, 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.
author. Morton & Sophia Macht Professor of Law, University of Maryland Carey School of Law; Affiliate Fellow, Yale Information Society Project; Affiliate Scholar, Stanford Center for Internet and Society. Special thanks to Leslie Meltzer Henry, Mary Anne Franks, David Pozen, Jeanine Morris-Rush, Ari Waldman, Ryan Calo, I. Bennett Capers, Nestor Davidson, Clare Huntington, Woodrow Hartzog, Robert Kaczorowski, Lee Kovarsky, Robin Lenhardt, Linda McClain, Neil Richards, and Benjamin Zipursky for close readings of drafts and helpful conversations; to David Bateman, Marc Blitz, Jennifer Finney Boylan, Khiara Bridges, Bobby Chesney, Julie Cohen, Elisa D’Amico, Stacey Dogan, Jeanmarie Fenrich, Andrew Ferguson, James Fleming, Jeanne Fromer, Cynthia Godsoe, Carrie Goldberg, Leigh Goodmark, Michele Goodwin, Wendy Gordon, Mark Graber, Yasmine Green, Abner Greene, Susan Herman, Holly Jacobs, Quinta Jurecic, Margot Kaminski, Kate Klonick, Joseph Landau, Ethan Leib, Leah Litman, Jennifer Mnookin, Ted Neustadt, Helen Norton, Angela Onwuachi-Willig, Mike Pappas, Catherine Powell, Alan Rozenshtein, Jason Schultz, Mona Sedky, Jed Shugerman, Katharine Silbaugh, Jessica Silbey, Scott Skinner-Thompson, Geoffrey Stone, Katherine Stranburg, Linda Sugin, Olivier Sylvain, Eugene Volokh, and Benjamin Wittes for sage advice; to Eleanor Citron, Jessica Burgard, Susan McCarty, Samuel Morse, Madeline Spencer, and Rebecca Zipursky for superb research assistance; and to Dean Donald Tobin and Associate Dean Michael Pappas for endless support and encouragement. I am grateful to the participants in Linda McClain’s Gender and the Law class at Boston University School of Law, the PEN America Board of Trustees meeting, UC Irvine Law Review’s Gender and Technology symposium, Fordham Law Review’s Gender Equality and the First Amendment symposium, and faculty workshops at Boston University School of Law, Brooklyn Law School, Fordham University School of Law, Northeastern University School of Law, NYU School of Law’s Engelberg Center, and UCLA School of Law for helpful comments. I had the great fortune of working on this piece while visiting at Fordham University School of Law and in anticipation of joining the faculty of Boston University School of Law in the fall of 2019. I owe a debt of gratitude to the superb editors of the Yale Law Journal, especially Ali Cooper-Ponte who made all the difference with her astute feedback.