Here’s the idea: before anyone can distribute your private information, they should have to get your permission. This idea of affirmative consent comes from anti-rape activists who tell us that we need consent for every sexual act. And we have really high standards for consent in a lot of other areas. Think about having surgery. Your doctor has to make sure that you are meaningfully and knowingly consenting to that medical procedure.
This is not the type of consent with like an iTunes Terms of Service where you just scroll to the bottom and you’re like, “Agree, agree, whatever.” If we think more about consent, we can have better privacy laws. Right now, we just don’t have that many protections. If your ex-husband or your ex-wife is a terrible person, they can take your nude photos and upload them to a porn site. It can be really hard to get those images taken down, and in a lot of states, you’re actually better off if you took the images of yourself because then you can file a copyright claim.
Right now, if someone violates your privacy, whether that’s an individual, or a company, or the NSA, you can try filing a lawsuit, but you may not be successful because many courts assume that digital privacy is just impossible, so they’re not willing to punish anyone for violating it. I still hear people asking me all the time, “Isn’t a digital image somehow blurring the line between public and private because it’s digital, right?” No, no! Everything digital is not just automatically public. That doesn’t make any sense.
As NYU legal scholar, Helen Nissenbaum, tells us, we have laws, and policies, and norms that protect all kinds of information that’s private, and it doesn’t make a difference if it’s digital or not. All of your health records are digitized, but your doctor can’t just share them with anyone.
All of your financial information is held in digital databases, but your credit card company can’t just post your purchase history online. Better laws could help address privacy violations after they happen, but one of the easiest things we can all do is make personal changes to help protect each others’ privacy. We’re always told that privacy is our own sole individual responsibility. We’re told, “Constantly monitor and update your privacy settings.” We’re told, “Never share anything you wouldn’t want the entire world to see.” This doesn’t make sense.
Digital media are social environments, and we share things with people we trust all day, every day. As Princeton researcher, Janet Vertesi, argues, our data and our privacy are not just personal, they’re actually interpersonal. So one thing you can do that’s really easy is just start asking for permission before you share anyone else’s information. If you want to post a photo of someone online, ask for permission.
If you want to forward an email thread, ask for permission. If you want to share someone’s nude selfie, obviously, ask for permission. These individual changes can help us protect each others’ privacy, but we need technology companies on board as well. These companies have very little incentive to help protect our privacy because their business models depend on us sharing everything with as many people as possible. Right now, if I send you an image, you can forward that to anyone that you want.
But what if I got to decide if that image was forwardable or not? This would tell you, “You don’t have my permission to send this image out.” We do this kind of thing all the time to protect copyright. If you buy an e-book, you can’t just send it out to as many people as you want, so why not try this with mobile phones? What you can do is we can demand that tech companies add these protections to our devices and our platforms as the default. After all, you can choose the color of your car, but the airbags are always standard. If we don’t think more about digital privacy and consent, there can be serious consequences.
There was a teenager from Ohio – let’s call her Jennifer for the sake of her privacy – she shared nude photos of herself with her high school boyfriend thinking she could trust him. Unfortunately, he betrayed her and sent her photos around the entire school. Jennifer was embarrassed and humiliated, but instead of being compassionate, her classmates harassed her. They called her a slut and a whore, and they made her life miserable. Jennifer started missing school, and her grades dropped.
Ultimately, Jennifer decided to end her own life. Jennifer did nothing wrong. All she did was share a nude photo with someone that she thought that she could trust. And yet, our laws tell her that she committed a horrible crime equivalent to child pornography. Our gender norms tell her that by producing this nude image of herself, she somehow did the most horrible, shameful thing.
And when we assume that privacy is impossible in digital media, we completely write off and excuse her boyfriend’s bad, bad behavior. People are still saying all the time to victims of privacy violations, “What were you thinking? You should’ve never sent that image.” If you’re trying to figure out what to say instead, try this: imagine you’ve run into your friend who broke their leg skiing. They took a risk to do something fun, and it didn’t end well. But you’re probably not going to be the jerk who says, “Well, I guess you shouldn’t have gone skiing then!” If we think more about consent, we can see that victims of privacy violations deserve our compassion not criminalization, shaming, harassment, or punishment.
We can support victims, and we can prevent some privacy violations by making these legal, individual, and technological changes. Because the problem is not sexting, the issue is digital privacy, and one solution is consent. So the next time a victim of a privacy violation comes up to you, instead of blaming them, let’s do this instead: Let’s shift our ideas about digital privacy, and let’s respond with compassion. Thank you.