Sexual Privacy

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.

Keywords: sexual privacy, revenge porn, deep fake, section 230