In a 2019 press release, New York Attorney General Letitia James highlighted the significance of her office’s settlement agreement with the dating app Jack’d for LGBTQ people. For an entire year, the company had ignored reports that subscribers’ private photos were not stored securely. James condemned the company for ignoring the problem knowing that 80 percent of its subscribers were gay, bi, and trans people of color who might face hate crimes and bullying from photo leaks. The app had wrongly prioritized its profits over subscribers’ privacy and safety.

James could have centered her remarks on the company’s “unfair and deceptive” practices—​after all, that was why her office had jurisdiction over the app’s security failure. Instead, she emphasized privacy’s inextricable link to equality. Subscribers would only feel free to engage in sexual expression if the app could be trusted to keep their photos secure from those who might discriminate against them due to their sexual orientation, race, or gender nonconformity.

But as James made clear, privacy invasions aren’t solely consumer protection matters. Companies’ mishandling of our intimate information doesn’t just involve broken promises or unfair commercial practices, though Jack’d had violated its pledge to “maintain reasonable security practices” and ignored reports that its databases were insecure. Ex-partners’ or strangers’ privacy violations (like the nonconsensual taking, faking, or sharing our intimate images) aren’t harmless antics or the residue of bad breakups. Governments’ pervasive surveillance of intimate life isn’t ordinary bureaucratic overreach. Corporate, individual, and government privacy invaders would like us to view them that way—​all the easier to maintain the status quo. Invasions of intimate privacy are not only sources of profit, retaliation, or law and order. They are far more than that.

To combat invasions of intimate privacy, we first need to recognize intimate privacy as a moral and legal right. Everyone deserves intimate privacy to create a life of meaning, respect, and love and to feel that they belong as citizens. In making this a civil right, lawmakers would show their appreciation of intimate privacy’s significance for individuals, groups, and society.

In the United States, the recognition of a civil right has legal significance and moral resonance. Our civil rights tradition secures strong protections for crucial rights. Lawmakers can insist upon robust duties to protect intimate privacy and to remedy its violation. The recognition of a civil right to intimate privacy is urgent for women and minorities who suffer discrimination due to attitudes stigmatizing their bodies and intimate lives. Although modern civil rights laws are principally antidiscrimination laws, that should not be their sum total. A civil right to intimate privacy must combat invidious discrimination and secure basic entitlements for all.

Every year since 2016, Georgetown University Law Center has held a conference entitled “The Color of Surveillance,” which explores the disparate impact of government surveillance on Black, poor, and immigrant communities. At the first conference and in her ground​breaking work, African Studies scholar Simone Browne discussed how 18th-​century laws required Black, mixed-​race, and Indigenous enslaved people to carry candle lanterns while walking in public after sunset without the company of a white person, deputizing private people to stop anyone who failed to comply. The logic of those laws continues in the stop-​and-​frisk policing of Black and Brown people and the use of floodlights by police in Black neighborhoods. In 2020, conference organizer (and FTC commissioner, as of May 2022) Alvaro Bedoya argued that privacy is a civil liberty and a civil right: Marginalized communities deserve freedom from government surveillance (the civil liberty) and privacy protections against discrimination (the civil right).

Underlying Bedoya’s argument—​and that of James in the Jack’d case—​are the antidiscrimination principles governing modern civil rights laws. Under state and federal law, powerful entities, both public and private, are prohibited from depriving people of important opportunities because of their race, age, national origin, religion, gender, disability, and sexual orientation. People have a right to work, attend school, obtain loans, use public transportation, vote, and secure housing free from invidious discrimination.

Bedoya and James are right—​gender, sexual, and racial equality and intimate privacy are a package deal. Women, LGBTQ individuals, nonwhites, and disabled people shoulder a disproportionate share of privacy invasions, which makes them vulnerable to destructive discrimination.

Following the development of modern civil rights laws, a civil right to intimate privacy would combat privacy invasions amounting to invidious discrimination. It would limit or ban data practices that imperil the opportunities of women and marginalized communities because of their membership in protected groups. That is the approach of the federal Genetic Information Non-​Discrimination Act (GINA), which prohibits companies from using genetic information in employment decisions. GINA was inspired by the historical threat of discrimination against Black people due to their disproportionate development of sickle cell anemia.

But a civil right to intimate privacy should not only be a right to combat invidious discrimination: It should also be a right to baseline protections for intimate privacy for everyone. As legal philosopher Robin West explains, civil rights should be understood—​and protected—​as “human or natural rights” that enable “our most fundamental human capabilities.” They are rights to something—​entitlements that let us “thrive and be social,” feel like we belong, and engage as citizens. Civil rights deserve recognition and protection because they “secure the preconditions for a good life.” In the United States, civil rights protections have been operationalized through the interpretation of constitutional rights, the passage of state and federal laws, and the enforcement of existing laws that foreground those rights.

The understanding of civil rights as human rights with basic entitlements has a rich history. In 1792, political theorists Thomas Paine and Mary Wollstonecraft argued for a civil right to public education because it facilitates human development and participation in civil society. Legal historians George Rutherglen and Edward White have explored how the federal Civil Rights Act of 1866 protected common law rights—​the ability to buy property and to enter into contracts—​because they were fundamental to participation in civil society, requiring protection from discrimination. Legal historian and dean of the University of Virginia School of Law Risa Goluboff has highlighted how, in the 1940s, lawyers at the Department of Justice’s Civil Rights Section focused on eliminating barriers to pursuing one’s chosen occupation because employment was an inalienable and natural right.

The notion of civil rights as securing human rights receded in mid-​20th-​century America. As historian and African American Studies scholar Carol Anderson has explained, President Truman and Eleanor Roosevelt rejected civil rights activists’ calls for the recognition of human rights because of the term’s association with communism. In turn, the NAACP abandoned the call for protections of inalienable rights like education and employment and instead focused on securing protections against discrimination in important contexts. Civil rights should, as the NAACP argued in its early history, both secure our entitlement to fundamental rights—​including intimate privacy—​and combat the discriminatory denial of those rights.

Of course, not every interest implicates a civil right. Lots of people like to buy alcohol on Sundays, but they wouldn’t have a civil right to purchase it for Super Bowl parties. (Don’t get me wrong, I like whiskey, but I would still have a fulfilling life if I could buy it only six days a week.) We enjoy access to parks, but we wouldn’t have a civil right to enter them at night. Civil rights are rights considered fundamental because they enable us to flourish as whole individuals and active members of society.

Although intimate privacy has not been recognized as a civil right (understood as both a basic entitlement and an antidiscrimination mandate), it should be. Doing so would clarify the moral significance of intimate privacy. It would give us the vocabulary to understand its centrality to the development of an authentic and dignified identity. It would signal that intimate privacy is a precondition to love, friendship, and civic engagement. It would convey the necessity of intimate privacy for individual and community development. It would communicate to companies that intimate privacy deserves strong protections rather than empty gestures, to individuals that intimate privacy violations aren’t harmless antics, to governments that demeaning data collection corrodes democracy, and to each and every one of us that our intimate privacy matters.

The recognition of intimate privacy as a civil right would also draw proper attention to its structural role in combating discrimination against protected groups and protecting equality. It would highlight the troubling social attitudes that turn women’s and minorities’ naked bodies and intimate information into stigmatized bodies and sources of blackmail, humiliation, and destruction. It would acknowledge the unique harms suffered by women and minorities, often intersectionally, and the corrosive impact that discriminatory attitudes have on psyches, careers, educations, and more.

Appreciating that sexual activity, nudity, and other intimate information (real or fake) can be viewed as discrediting, humiliating, and shameful and result in discrimination does not mean that they are discrediting, humiliating, and shameful. Our naked bodies, sexual practices, and innermost desires are not dirty. They are not despicable. They are not blameworthy. If and when destructive attitudes recede (one can dream!), a civil right to intimate privacy will still matter.

In our current regulatory environment, companies invade intimate privacy without having to justify their data handling practices. The public need only be given a heads-​up about what companies are doing, in vaguely written privacy policies, but not why. US tech companies don’t have to justify their surveillance to anyone—​not to lawmakers, courts, or agencies—​unless they face investigations for acting deceptively or unfairly. Individual privacy invaders and their enablers—​sites specializing in nonconsensual intimate imagery—​don’t have to, nor do they, ask individuals for permission to record, manufacture, or share their nude images. Government spies operate under the same assumption. Government engages in a “gargantuan data grab,” as criminal procedure and constitutional law scholar Barry Friedman puts it, without asking anyone for permission.

If we recognize and protect intimate privacy as a civil right, that unjustified presumption of permission would disappear. As legal philosopher Frederick Schauer has explained, when we say that something is a right, it means that the right can’t be denied without a good reason. Corporate spies and government spies would need a good reason to handle intimate data. Law could limit or ban outright certain practices if no good reason justifies them. What counts as a good reason to abridge a civil right to intimate privacy would be difficult to satisfy. Boosted corporate profits and reduced administrability costs would not cut it.

No doubt, US companies monetizing intimate data won’t be thrilled. Corporate lobbyists will object. They will insist that collecting intimate data serves efficiency because it pairs people with useful products and services and enables innovation and discovery. Their arguments will be premised on a whole lot of possibilities, but not certainties. Companies insist that the world will be far better off so long as they can collect, use, and share intimate data, but as far as I can tell, they haven’t provided much proof of concept. Or in economic terms, they will have difficulty showing that the marginal benefits of data collection outweigh the marginal costs to intimate privacy. Lobbyists will simply assert that individuals are better off (as if such assertions prove themselves), but aside from fattened corporate profits, they likely will not offer much support for their claims. A civil right to intimate privacy is indispensable to self-​development, dignity, and close relationships, as well as equality—​we cannot sacrifice it without a darn good reason.

Adapted from The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age by Danielle Keats Citron. Copyright © 2022 by Danielle Keats Citron. Used with permission of the publisher, W. W. Norton & Company, Inc. All rights reserved.