Danielle Keats Citron - The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age

THE FIGHT
FOR PRIVACY

Protecting
Dignity, Identity, and Love
in the Digital Age

Danielle Keats Citron

W.W. NORTON & COMPANY

Independent Publishers Since 1923

This book is dedicated to my family.

Also by Danielle Keats Citron

Hate Crimes in Cyberspace

THE FIGHT FOR PRIVACY

ALEX IS A NURSE IN HER LATE TWENTIES. ONE MORNING, AS always, Alex rose early, made coffee, and took a shower. She noted her blood sugar on her health band and checked her dating app. She messaged a friend to confirm dinner plans. As she made breakfast, she asked her home assistant to play her voice mails. What she heard stopped her in her tracks. A friend had left a message warning that Alexs ex had tweeted a video of her undressing in her bedroom. Alex searched her name online and found the video on several adult sites. When she checked her email, she saw messages from her mothers family in South Africa saying that her ex had sent them the video using what seemed like her email address.

Until that moment, Alex had no idea that her intimate life was under surveillance. She did not know that her ex had hidden a nanny cam in her bedroom. She did not want anyone watching her or posting videos of her undressing online. She was the victim of privacy violations that undermined her autonomy, her dignity, and her willingness to trust others.

In the twenty-first century, when we meet new peoplemany times even before we meet themwe Google them. Alex knew that new friends, colleagues, acquaintances, and even strangers inevitably would see her body before they met her in person. Even the people in her inner circle would see this video and have to look past it to connect with her as a whole person. And the privacy violation wouldnt just change how others saw Alexit had already changed how she saw herself. She no longer felt safe or in control; she felt defenseless.

Alex was denied what I call intimate privacy. Intimate privacy involves the social norms (attitudes, expectations, and behaviors) that set and fortify the boundaries around our intimate lives. It concerns the extent to which others have access to, and information about, our bodies; minds (thoughts, desires, and fantasies); health; sex, sexual orientation, and gender; and close relationships. It includes our on- and offline activities, interactions, communications, and searches. It isnt just a descriptive term, but also a normative one. Intimate privacy is a precondition to a life of meaning. It captures the privacy that we want, expect, and deserve at different times and in different contexts. At its core, it is a moral concept.

In 1890, two American lawyers, Samuel Warren and Louis Brandeis, worried about the way emerging technologies were being used to erode the privacy of intimate life. Gossip rags were growing in popularity. Reporters used Kodak cameras to capture people in unguarded moments at home and on the street. Details of peoples sex lives sold newspapers, so the press splashed intimacies whispered in the closet on their front pages. Warrens brother was discovering his homosexuality just as the public warned of homosexualitys deviance. Then, being gay was publicly shameful and potentially criminal. Warren enlisted his law partner Brandeis to write an article that would highlight privacys centrality to human development. Warren and Brandeis called for a legally recognized right to privacy, by which they meant an ability to decide the extent to which ones innermost thoughts, desires, and domestic relations are shared with others. They underscored the spiritual and psychological harm inflicted by privacy invasions. We dont think of The Right to Privacy as being about intimate privacy, but that is what their writing described.

Their article was a powerful opening salvo in the fight for privacy, but their goal remains elusive. More than one hundred years later, the privacy afforded intimate life has still not been given sufficient attention or protection. That must change.

Consider the privacy afforded bank account information. It protects our accounts from theft, yes, but otherwise has a limited impact on our lives. Intimate privacy, on the other hand, frees us to figure out who we are, what turns us on, and who we love. It lets us see ourselves as dignified and have others see us that way. It enables us to form and sustain close relationships. Intimate privacy is fundamental to our development in a way that a bank ledger will never be.

Privacy, as it interlocks with our intimate lives, carves out an invisible space with our bodies and thoughts so we can develop a sense of self and identity. Self-knowledge begins with our bodiesour first point of reference for our needs, desires, and aspirations.

Instinctively, we all feel that we should have a right to intimate privacy. We should be able to live free from fear that the details of our intimate lives are being amassed and exploited. We should be able to undress in bathrooms, wear health bands, talk to digital home assistants, search adult sites, and message dates and friends without worrying about being surveilled. We should be able to share experiences, feelings, and thoughts on- and offline, with the reassurance that the firms facilitating our activities and interactions are also protecting them. We should be able to take advantage of these possibilities without sacrificing our intimate privacy. Yet we do not live in that world. We do not have a right to intimate privacy. But we can, and we should.

As a law professor and civil rights advocate, I work to help us understand why intimate privacy matters and how its denial amounts to a massive legal, social, and moral failing. Over the past decade, I have advised tech companies about privacy and safety practices. I have talked to CEOs and safety officials interested in protecting intimate privacy. I have worked with lawmakers and law enforcement in the United States, South Korea, Australia, and the United Kingdom. I have advocated for legal and social change to prevent individuals from invading others intimate privacy; businesses from over-collecting, using, and sharing our intimate data; and governments from manipulating intimate information to silence, blackmail, and imprison journalists and critics.

When I first started working on privacy issues in 2005, our intimate lives had just begun to be subject to digital surveillance. Facebook was in its infancy, Google would debut its first Maps product that spring, the iPhone would not launch for another two years. It was still possible to maintain some level of anonymity on- and offline. Companies soon realized that they could earn money from turning products and services into data collectors and purveyors. Firms began hoarding our personal data, and it happened so seamlessly that we hardly noticed. Although they touted their services as free, we paid for them with our personal data and our attention, rather than with our credit or debit cards. Tech companies assured us that data collection would make our lives betterthat it would be fun and rewarding, and that it would not compromise the safety of our data. Trust us, they said, and we did.

The details of our intimate lives are a valuable commodity in the age of informational capitalism, as privacy scholar Julie Cohen has aptly described modern data markets. vulnerabilities. They sell our data to eager buyers. Now that storage is cheap, the default is to collect everything because even the most prosaic informationlike whether we searched for hand cream or alcohol wipeswhen combined with lots of other seemingly benign personal information can provide a window into our intimate lives. Computer scientists tell us that soon anyone with access to lots of unrevealing personal data will be able to infer revealing information (like our sexual orientation or health conditions) with a high degree of accuracy. Privacy invasions are central to the business model of internet platforms, devices, and services: the more information they have about us, the more they have to sell to advertisers, data brokers, and governments, who can further exploit and control us.