Sexual Privacy
ARTICLE SUMMARY
Sexual privacy is based on social norms about access to information about the human body, gender identity, sexuality, and intimacy. Criminal and tort law do not fully address violations of sexual privacy. Digital technology magnifies the harm from violations of sexual privacy.
POLICY RELEVANCE
Sexual privacy should be better recognized and protected.
KEY TAKEAWAYS
- Violations of sexual privacy include the use of hidden cameras to film people in restrooms, “up-skirt” photographs, posting of explicit images without permission, and the creation of fake sex videos by inserting people's faces into pornography.
- Criminal law does not provide comprehensive protection for sexual privacy; for example, a “revenge porn” law enacted in Maryland only applies to images posted on the Internet, but excludes images sent to colleagues, friends, and family via email or text.
- Tort law, including the tort of intentional infliction of emotional distress, provides redress for some sexual privacy invasions.
- “Sextortion” occurs when a perpetrator obtains nude images of a victim and threatens to release the images unless the victim participates in explicit sex videos; sextortion of an adult violates federal laws against computer hacking, extortion, or stalking.
- An invasion of sexual privacy law should require proof that the defendant knowingly engaged in recording, fabricating, or disclosing information involving images of a private area or sex act.
- The law should require proof that the defendant knew he acted without consent.
- Penalties should be enhanced for violations motivated by bias.
- The law should require proof that the defendant knew he acted without consent.
- Online service providers are immune from liability under Section 230 of the Communications Decency Act; this law should be amended so that platforms that knowingly and intentionally leave up unlawful and harmful content are not protected from liability.
- Digital technology magnifies the harm from violations of sexual privacy, as networked technologies allow violations on a large scale and attacks from around the world; search engines ensure that posts remain visible far into the future.
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About Danielle Citron
Danielle Citron is the Jefferson Scholars Foundation Schenck Distinguished Professor in Law at the University of Virginia School of Law. She writes and teaches about privacy, free expression and civil rights. She is an Affiliate Scholar at the Stanford Center on Internet and Society, Affiliate Fellow at the Yale Information Society Project, Senior Fellow at Future of Privacy, Affiliate Faculty at the Berkman Klein Center at Harvard Law School, and a Tech Fellow at the NYU Policing Project.
