Danielle Lemon is a professor of law at the University of Virginia School of Law, where she specializes in privacy and civil rights. His new book, The Fight for Privacy: Protecting Dignity, Identity and Love in the Digital Age, describes the 21st century attack on privacy by “Spying Inc”, the companies, governments and individuals who seek to exploit and profit from our most sensitive data. She argues that privacy should be enshrined as a civil right in the United States.
We hear a lot about companies that collect our data, yet your book still manages to shock by revealing the extent of these practices. You point out, for example, that our Internet search history is essentially in the public domain and could be purchased by any motivated party. Additionally, dating app Grindr shared information about users’ HIV status with third-party data brokers before it was caught.
We viscerally resent the way corporations and governments monitor our lives by amassing intimate information about our bodies, our health, our closest relationships, our sexual activities, and our most intimate thoughts. The companies sell this information to data brokers, who compile records with around 3,000 data points about each of us, including whether we’ve been raped, use sex toys, or have had abortions or miscarriages. .
They rate us on our likelihood of developing type 2 diabetes and heart disease or our likelihood of being hospitalized within the next six months. They rate us based on how long we stay on adult sites and our sexual interests. This information is used, for example, by third-party employment services that help employers screen CVs or insurers. There are jobs we never interview for, or life insurance premiums we don’t realize are going up, because of this information.
Is the situation similar in the UK?
The UK’s General Data Protection Regulation requires consent before processing sensitive data and personal data and the UK’s Information Commissioner’s Office has investigated the three largest credit reference agencies . Two agreed to stop processing sensitive data and we won’t settle. But the ICO did not investigate each of the 1,000 data brokers. Enforcement protection is uneven.
You write that this information is used by law enforcement in the United States to mount legal cases without the requirement of warrants or subpoenas. This practice is all the more worrying following the recent overthrow of Roe v Wade, states now criminalizing abortion. What kind of data is going to be weaponized against women?
If you travel across state lines or go to another city and visit a health care provider or an abortion provider, your phone’s location data tells the full story of where you went. abort you. If you go to a pharmacy the same day to get medicine and sanitary napkins, your purchases could be tracked. If you have a bonus card, for example, you get “discounts” for your purchase history, which is stored and sold to advertisers and data brokers. A third of girls and women in the United States use period tracking apps and it can be used as a weapon against them. The story of a pregnancy and its termination is a story told by data.
After the Roe v Wade reversal, we saw an attempt to pressure rule-following apps and internet companies to commit to protecting users from law enforcement. What kind of meaningful action could these companies take?
I think the law needs to step in to enforce no-collect, no-sell covenants, especially for reproductive health data and location data. They may process what is necessary to provide you with a service, but they should not store the data because then law enforcement could not obtain it with a subpoena or warrant.
At the heart of your book is the concept of intimate intimacy. How do you define that?
It is the intimacy that is granted to our intimate lives. This includes our bodies, our minds, our close relationships, our sexual activities, our innermost thoughts, our fantasies, our emotions and our communications. The way we document this in the digital age is, of course, our searches, our browsing, all of our digital communications.
Privacy is essential to human flourishing, democratic citizenship and equality. If you don’t have the ability to set boundaries around these aspects of privacy, it’s hard to develop who you are. I can’t put it better than Charles Fried, professor of law at Harvard Law School, who said that privacy is the oxygen of love. We fall in love by becoming mutually vulnerable and sharing information with each other, including things we wouldn’t share with anyone else. The argument of the book is that without intimate intimacy, we are shells of ourselves. We cannot participate in citizenship.
Internet companies and data brokers breach this kind of privacy every day, but your book also talks about more targeted attacks, such as revenge porn, where people share other people’s intimate photos or videos online. It sheds light on how Section 230, a piece of US legislation that has been at the heart of debate over social media content moderation in recent years, protects such content.
Section 230 of the Communications Decency Act makes it impossible to take legal action against the party best placed to minimize the harms of sharing intimate information without someone’s consent: content platforms. You can’t demand that a site remove your nude photos posted without your permission. The site makes money from your photo, they make money from the data of everyone who subscribes or visits, but they can say, “Sorry, too bad.”
In the UK, the Online Safety Bill has yet to pass, so victims cannot sue non-consensual porn platforms. If it passes, [platforms] may have a duty of care to mitigate the risks of online harm. [But] today, authors can post to sites in the UK and the US without much fear.
After 25 years of the legal shield of Section 230, we must recognize that while it has emboldened and enabled all kinds of speech and activity online, there are also many costs to speech. Cyberstalking, privacy violations and harassment have driven people offline, often women and minorities. We have clear empirical evidence that the status quo is very costly for civil liberties and civil rights.
We are in a cultural moment where many believe it is socially acceptable to share pictures of strangers online. Your book is specifically focused on privacy, but do you see that as related?
Part of the book is legal and speaks to the industry, but it’s also a cultural issue, isn’t it? Change the law in all of us. Because we’re neglectful and unless it happens to us – the shame, the stigma, the embarrassment – it’s hard for people to understand. It must become a lifelong education. Because we human beings have such great potential for joy, love and kindness, but we also have such great potential for cruelty.
The Fight for Privacy: Protecting Dignity, Identity and Love in the Digital Age by Danielle Keats Citron is published by Chatto & Windus (£18.99). To support the Guardian and Observer order your copy at guardianbookshop.com. Delivery charges may apply