A New Compact for Sexual Privacy

Abstract

Intimate life is under constant surveillance. Firms track people’s periods, hot flashes, abortions, sexual assaults, sex toy use, sexual fantasies, and nude photos. Individuals hardly appreciate the extent of the monitoring, and even if they did, little can be done to curtail it. What is big business for firms is a big risk for individuals. Corporate intimate surveillance undermines sexual privacy—the social norms that manage access to, and information about, human bodies, sex, sexuality, gender, and sexual and reproductive health. At stake is sexual autonomy, self-expression, dignity, intimacy, and equality. So are people’s jobs, housing, insurance, and other life opportunities. Women and minorities shoulder a disproportionate amount of that burden.
Privacy law is failing us. Not only is the private-sector’s handling of intimate information largely unrestrained by American consumer protection law, but it is treated as inevitable and valuable. This Article offers a new compact for sexual privacy. Reform efforts should focus on stemming the tidal wave of collection, restricting uses of intimate data, and expanding the remedies available in court to include orders to stop processing intimate data.