Privacy is often used as a smokescreen to hide the fact that privacy-destroying activities are being instigated. Tech giants exploit consumers’ online privacy and civil rights, harvesting our intimate details for profit and imperiling our rights. Facebook, Google, Amazon, and others are only interested in protecting their privacy. They push back against regulators under the pretense of protecting “trade secrets.”
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By Danielle Keats Citron
Norton, 304 pp.
Privacy also means keeping secret the misdeeds of powerful men. Harvey Weinstein, the disgraced film mogul was able to take advantage of what The New York Times has calledA “protection racket,”Or a “network of aggressive public relations flacks and lawyers who guard the secrets of those who employ them and keep their misdeeds out of public view.”Matt Lauer, who was fired by NBC News in 2017, had a button hidden under his desk that prevented him from being interrupted while he had inappropriate relationships with female employees. Women who stand up against assaulters often get an out-of court settlement and confidentiality agreement. It is a lessening of secrecy. All this cloak-and-dagger business gives privacy a bad rap—it’s a debased currency that licenses men to oppress women, monopolies to oppress consumers, and powerful people to guard their profits at the expense of everyone else.
It didn’t have to be this way. The 1890s were the year that the legal concept of the privacy right was first introduced. Harvard Law Review Article by Samuel Warren and Louis Brandeis, in which the authors call for a legal system to protect the “right to be let alone”In the “sacred precincts of private and domestic life.”The article relied on a psychological insight: If information pertaining to an individual’s private life is made public, it can damage the person’s “estimate of himself.”Brandeis and Warren wrote that individuals and societies are both harmed when they do not comply with the law. “numerous mechanical devices … make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’ ”Warren’s definition of privacy was his own, as Ned was openly homosexual. Journalists speculate that Warren’s authorship of the article was partly motivated by the desire to protect his family against the sensationalism of penny press. Scholars have called this article “the foundation of American privacy law” “one of the most famous law review articles ever written.”It gave women the ability to use tort laws to object to their images being used for commercial purposes in films and advertisements in the early 20th-century.
How privacy torts morphed from a potentially liberatory tool into an overly narrow set of claims typically used in defense of the powerful—and how we might turn the tide—is part of the story that Danielle Keats Citron, a legal scholar and vice president of the Cyber Civil Rights Initiative, tells in her authoritative new book, The Fight for Privacy. Citron’s work arrives when conversations about digital privacy have reached a new pitch. According to the Pew Research CenterThe majority of Americans believe that the risks of collecting personal data outweigh the benefits and support more regulation about what companies can do. Congress is composed of bipartisan legislators proposedA bill that allows users to opt-out of targeted ads and sue internet firms that sell their data without permission. The Federal Trade Commission also announced last month that the “Advanced Notice of Proposed Rulemaking,”This would provide safeguards to protect consumer privacy within the U.S. Such provisions are long overdue. Yet there’s a shady grove of the surveillance economy that has received much less attention from lawyers and legislators: intimate privacy.
The Fight for PrivacyA flashlight shines on the area. “Intimate privacy”Citron provides much-needed clarification. For her, the term is both a descriptive one—the set of norms around our intimate lives—and a normative one: “a precondition”It is about living a meaningful life. It refers to “the extent to which others have access to, and information about, our bodies; minds; health; sex, sexuality, and gender; and close relationships,”At its core, it is a “moral concept.” Citron’s book provides a legal pathway for securing our right to intimate privacy in the digital era and for recognizing that it is as crucial as our other civil liberties—no more, no less. With Roe v. Wade overturned and the potential for women’s intimate data to be used to investigate or prosecute potential abortion cases, such legal clarity is more urgent than ever. As Citron has noted in Slate, Dobbs v. Jackson Women’s Health OrganizationFederal protections for reproductive autonomy were not only eliminated, but also “augurs a future where no aspect of our intimate life is ours … where every detail about our bodies, health, and relationships is amassed and sold.”
The Fight for PrivacyIt expands on some of the arguments Citron presented in her first book. Cyberspace is home to hate crimesIn which she argued that just like we have moved from Web 1.0 (a read only internet) to Web 3.0, which offers online experiences tailored for our preferences, cyberharassment has evolved into what she calls cyberstalking. “Hate 3.0,”A form of “personalized hate, as damaging as this new stage of the web aims to be productive.”She collected evidence to show the emotional harm caused by online harassment. Victims are often plagued with post-traumatic stress, panic attacks or anorexia. Compounding the emotional distress, victims often incur substantial legal fees and moving expenses, and pay higher out-of-pocket costs for doctor’s visits.
Since Hate CrimesIn 2014, the first online misogyny was published. Feminist writers and thinkers have continued to write on the topic. The publication of How to be a woman online: Surviving abuse and harassment, How to Fight BackNina Jankowicz notes that “to be a woman online is an inherently dangerous act,” and Joanna Walsh’s Girl Online – A User Manual. The publication of Jankowicz’s book illustrates the pervasiveness of online harassment. Around the book’s publication in April, the Homeland Security Department announced Jankowicz as the head of its new Disinformation Governance Board. Far-right influencers immediately discredit Jankowicz, putting her at risk. bombardment of personal attacksIncluding comments on Gab’s far-right social networking Gab promising to greet her with “Mr. 12 Gauge Slugs”And lamenting the inability to find a group of assassins trained to kill her. The entire episode made Jankowicz’s suggestions for combating such online abuse seem pathetic. Stop-gap measures such as deleting comments or taking a screenshot are effective in putting the burden on the victim of harassment, rather than the harasser.
Citron’s new book makes an important intervention in the larger conversation about digital privacy and harassment. She points out that the coronavirus epidemic was when the data justice crisis exploded. An Australian government agency and the Cyber Civil Rights Initiative in the U.S. both noted an increase in nonconsensual pornography of more than 200 percent. Citron notes that of the 50,000 deepfake videos posted online in 2020, about 95 percent placed unrelated women’s faces onto pornographic images.
Journalists and civilians in other countries—especially authoritarian “regimes—have also been targeted in retaliation for documenting human rights abuses, such as a journalist in India whose face was doctored onto porn clips that were “shared with nearly half of the phones in India”After she had criticised Prime Minister Narendra Modi. Her home address and phone number were made public. She received threats of rape and death threats. She stopped writing.
Citron tells the stories of women who have been subject to intimate surveillance, abuse and violence. Citron includes a New York City high school principal whose ex-boyfriend sent her sexually explicit photos to the New York Post. After they were published in the tabloid, the principal was fired for bringing them to the attention of the authorities. “widespread negative publicity, ridicule, and notoriety”failing to secure her photos. Citron points out that such reasoning is absurd. “According to this argument, if a shopkeeper’s safe is broken into by thieves, then the shopkeeper is to blame for not having a better safe.”
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Another case was that of a New York financial adviser who secretly recorded his sexual encounters. To share the videos with his friends, he uploaded them to his YouTube or Vimeo accounts. His sentence? Ten days of community work.
These violations can have lifelong consequences for victims. Citron argued in Cyberspace is home to hate crimesThe internet is “a force multiplier”It not only encourages people to be more violent than they would offline but also prolongs the life of malicious comments. Search engines instantly pull up images from years ago, which can be viewed by a vast audience. This is done at the request of cybermobs that are looking to be the most abusive. The interview was conducted with one Citron. “Anna”Two years ago, her ex-husband posted intimate photos and videos on fake Facebook and Twitter accounts. He also sent them to her colleagues at school.
The internet is often called a virtual Wild West, a zone of unrestricted free speech. Citron is not in agreement with this idea. Just like we have norms and regulations for workplaces, public spaces, and the internet, so should the internet. Harassment is not a disappearing act.
Citron singles Section 230 in the Communications Decency Act as a way to shield social media companies and provide a cover for malefactors. “host posts by civil rights protestors, like members of the #MeToo movement, and child predators.”Section 230 reform is primarily associated with congressional Republicans. They propose to narrow it to “protect free speech”Tech companies that discriminate against conservatives will be penalized. But Citron believes that well-intentioned reform would tackle cyberstalking, excluding bad actors from the act’s safe harbor provision.
Citron, who helped draft Maryland’s law criminalizing the nonconsensual publication of nude images, touts the notion, first articulated by Warren and Brandeis, of the “right to be let alone.” She couples such legal evaluations with a need for greater algorithmic transparency, given that intimate data has been or can be used to feed self-harm videos to those whose anxiety and depression are worsening or reveal users’ sexual orientations to discriminatory governments or employers, for example. The more that algorithms are used to determine people’s eligibility for benefits, jobs, housing, credit, insurance, and other life necessities, the greater the need for transparency around such automated processes to correct for biases and disparate, discriminatory impacts inherent in these systems.
Citron is attempting to use the Brandeisian original definition of privacy to help avoid abuses of privacy law. He suggests that legislators and lawyers return to its original intent. Some may find this unconvincing, or about as naive as Citron’s belief that with the right incentive structures in place, data brokers and advertisers can become “data guardians”Citron is not referring to agents of espionage. While parts of her argument remain underdeveloped, Citron does prove that the legal tools available to victims—including tort and consumer protection laws—are anemic. They’re too narrow, requiring victims to prove that privacy invaders It is intendedIt is notoriously difficult to prove that harm has been done. Networked technologies are evolving at hyperspeed and pose a greater threat to intimate privacy than legal protections.
That victims seek civil redress—including “claims for negligence, breach of contract, unfair and deceptive actions, and breach of warranty”—and fail speaks to the need for “baseline protections for intimate privacy.”Citron has sound suggestions. These include upgrading cyberflashing, which is sending unsolicited sexually explicit photos via text or AirDrop to Apple phones, and the nonconsensualexploitation of intimate pictures to felonies rather that misdemeanors. Plaintiffs should have the ability to sue under an anonymous name (to protect their privacy) and obtain injunctive relief (in form of removal, blocking or de-indexing nonconsensual photos). Citron supports a “Do Not Sell My Intimate Data”Registry, and argues that individuals must also have the digital equivalent of a “learner’s permit”Social media companies to allow their users to use their sites. Companies would be required to remind users about the importance privacy and to follow-up with them. “refresher courses.”
Cyberharassment undermines equality of opportunity; it jeopardizes individuals’ ability to enjoy their lives, seek employment, go to school, and be free from discrimination. Criminal law should treat privacy violations as one, and not in pieces.
Ultimately, cyberharassment undermines equality of opportunity; it jeopardizes individuals’ ability to enjoy their lives, seek employment, go to school, and pursue other activities free from discrimination. All 50 states have laws in place to protect online security. 48 states have criminalized nonconsensual sexual porn. California, Hawaii and New York have all made it a crime for deepfakes to be circulated online. Citron would argue that this is a good starting point, but we should aim for more protections for intimacy, in line with the Universal Declaration of Human Rights. This declaration recognizes the need to protect intimate relationships. “right to privacy”Fundamental. Rather than treating intimate privacy violations in a piecemeal fashion—which lends itself to a grab bag of weak statutes—criminal law ought “to treat the constellation”These problems are one. Individuals should have their right to privacy online. The hope is that enforcing it as such would have expressive value—it would give us a common language to talk about the importance of digital privacy. It would tell data brokers that dignity is more important than profits. It would inform government that data collection is a violation of equality. Such a law would proclaim that intimate privacy is a fundamental right.
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