Gender and Electronic Privacy
- Supreme Court Invalidates Sodomy Law. The U.S. Supreme Court issued a decision today that invalidated a Texas sodomy law. The decision is likely to invalidate laws in twelve other states that regulate the activities of adults that occur within the privacy of the home. Justice Kennedy, wrote: "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The [current] case involves liberty of the person both in its spatial and more transcendent dimensions." (Jun. 26, 2003)
Technology can enhance individual freedom through increased anonymity and privacy. However, the users of new technologies have employed them to violate autonomy and human dignity of others. Individuals can use privacy invasive technologies and behaviors against men or women in order to degrade or control. However, users of some of these behaviors and technologies disproportionately or entirely target women. These behaviors sexually objectify women. For instance, individuals use tiny cameras to take up-skirt and other fetish images of women. The availability of personal information about women from public records and other sources such a "pretexting" has fueled cyberstalking and real-world stalking.
A body of academic research specifically examines women's privacy. It explores the relationships between privacy and issues such as objectification of women, violence against women, subordination of women, and general precepts of dignity. In order to promote a culture of equality and autonomy, our society must attend to the privacy norms that disproportionately harm women.
Privacy issues may have different contexts and consequences for women. Professor Anita Allen explains that women's perceived position in society as inferiors has resulted in having too much privacy ñ that is, too much bad privacy, such as "imposed modesty, chastity, and domestic isolation." This type of familial privacy prevents exposure the of spousal and child abuse. Allen argues that women have only recently begun to enjoy enough of good privacy ñ freedoms that promote individual choice, autonomy and social participation.
There is significant debate among gender studies experts on the public policy approaches to addressing privacy and other risks to women. Some argue that advising women to change their behaviors does not address the core problems with male anti-social and sexist behavior ñ in fact, such recommendations are a form of female subordination in themselves. This web page cannot address this debate; it is designed only to elucidate types of privacy violations that have been used to exploit women in particular. Further, reproductive rights, familial privacy, other other privacy issues that affect women exceed the scope of this web page, which is devoted principally to electronic privacy issues.
"It's actually obsene [sic] what you can find out about people on the Internet."
--Liam Youens, the man who used an online information brokerage/pretexting agency to locate and kill Amy Boyer.
Pretexting is the practice of collecting information about a person using false pretenses. Typically, investigators pretext by calling family members or coworkers of the victim under the pretense of some official purpose. This can include calls made under the pretense that the victim is about to receive a sweepstakes award or insurance payment. The family members or coworkers called are deceived by the pretexter, and provide personal information on the victim.
Pretexting is the practice that led Liam Youens to the work address of Amy Boyer, which he used to locate and kill her. Youens had hired an online information broker, Docusearch.com, in order to learn more about Amy Boyer. Docusearch hired a Brooklyn woman named Michele Gambino to pretext Amy Boyer. Gambino was able to learn Boyer's work address, which was supplied to the killer.
Certain types of pretexting were prohibited by a 1999 law (the Financial Services Modernization Act, which is also known as the Gramm-Leach-Bliley Act or GLBA). The GLBA prohibits pretext calls made to financial, brokerage, or insurance companies. But investigators still can call friends, relatives, or entities not covered by the GLBA under false pretenses in order to gain information on the victim.
- Fact Sheet 14: Are You Being Stalked? Privacy Rights Clearinghouse.
- Fact Sheet 14(a): Security Recommendation for Stalking Victims. Privacy Rights Clearinghouse.
- Fact Sheet 14(b). Personal Safety Tips from a Long-Time Stalking Victim. Privacy Rights Clearinghouse.
- A Deadly Collection of Information. Washington Post, January 4, 2002.
The availability of inexpensive, high resolution cameras has fueled "video voyeurism," the practice of filming or photographing other persons in a privacy invasive fashion. Video voyeurism is a practice that can be used to degrade men or women, but it is treated here as a gender issue because nearly all high profile cases of video voyeurism involve the secret photography of women.
Much of this voyeurism is focused on fetish photographs ñ images of women's underwear taken from cameras mounted to a voyeur's shoe, down-the-blouse photographs, photographs of feet, and alteration of images where the face of one person is digitally edited to appear on the naked body of another. The widespread adoption of cellular phones with integrated cameras is accelerating this fetish photography. In December 2003, a Seattle man pleaded guilty to using his camera-equiped wireless phone to take pictures up a woman's skirt without her consent. In papers charging the Seattle man, police claimed that he admitted to photographing other women, and that he stored the images on a personal computer.
Video voyeurism is also known as "cyber-peeping," and individuals who engage in it sometimes treat it as a sport ñ a competition to see how many fetish images can be captured. In recent years, hidden cameras have been discovered in bedrooms, bathrooms, public showers, changing rooms, locker rooms, and tanning salons.
X10 is a company that markets tiny, high-resolution cameras. Much X10 advertising suggests that the cameras can be used to photograph women. The marketing is subtle, but certain aspects of the images--including pictures of women where they are not making eye contact with the photographer and enticements of "unexpected" images to be obtained--suggest that the cameras could be used without the consent or knowledge of the person photographed..
Under traditional precepts of privacy law, individuals do not enjoy a "legitimate expectation of privacy" when they are in public places. Accordingly, practices that may be invasive such as leering, solicitation of sexual relations, and photographing of women in public places are legal in the United States. As Professor Anita Allen has observed, "In the near future, a woman sitting in a coffee shop in Paris may find that live video images of her are being Webcast all over the world, simply because someone equipped with a wearable computer thinks she's a 'babe."'
Additionally, video voyeurism is difficult to address because of the concealability of modern cameras and the difficulty in linking up-skirt or other fetish photographs to a particular individual. Typically, video voyeurs must be caught in the act of photographing body parts. Once the act is completed and the photographs are placed on the web, it is not likely that victims will discover the photograph or link their identity to a particular photograph.
A series of cases reported in the Orange County Register revealed disturbing video voyeurism behavior that could not be addressed by law in 1998. The Register reported one case where a man spent eleven hours at Disneyland taking "up-skirt" images of women. The man did this by sliding camera hidden in a large bag under the legs of women at the park.
A couple in Monroe, Louisiana discovered that their neighbor, a church deacon, had installed cameras in their bedroom and bathroom. After learning that local authorities could not charge the deacon with a crime, they lobbied state legislators and were successful in passing legislation in Louisiana that makes video voyeurism a felony. At the federal level, Louisiana Senator Mary Landrieu has introduced legislation to prohibit video voyeurism, but the bill has not progressed.
Several other states have passed legislation to address video voyeurism. However, most states lack specific protections, and existing legislation to address "peeping toms" focuses on the place where the photograph was taken, rather than the intent of the photographer. Existing peeping tom laws also were written well before miniature, wireless cameras were developed and marketed for surreptitious monitoring. Accordingly, most Americans do not enjoy protection from these new technologies, except when they are in their homes. To address video voyeurism, older "peeping tom" legislation will need to be updated to protect the privacy of the person rather than the privacy of the person while in the home.
In a recent Washington State case, State v. Glas, officials successfully prosecuted a video voyeur. In that case, a video voyeur who used a shoe camera to take up-skirt pictures was arrested photographing women in a shopping mall. In this case, the victims were employees of a clothing store. At trial, the defendant voyeur argued that he could not have invaded the victims' privacy because individuals do not enjoy an expectation of privacy in public or in the workplace atmosphere of a mall clothing store. The court rejected this argument, finding that the victim had a legitimate expectation of privacy while in public. On review, however, the Washington Supreme Court reversed the trial court's ruling. The Washington Supreme Court held that the state's law did not prohibit taking up-skirt photographs. An attorney for the defendant noted that "the criminal law necessarily lags behind technology and human ingenuity...Technology has advanced to the point where there are pretty small video cameras that can be used to tape under a lady's clothing."
In February 2002, Representative Michael Oxley (R-OH) introduced H.R. 3726, the Video Voyeurism Act of 2002. If passed, the bill would prohibit nude or up-skirt photography of any "any nonconsenting person, in circumstances in which that person has a reasonable expectation of privacy." The bill was referred to the House Judiciary Committee. A companion bill has been introduced in the Senate by Senator DeWine.
The same members introduced new Video Voyeurism legislation in 2003. The Senate passed the bill, S 1301, the Video Voyeurism Protection Act of 2003, in September 2003. The House Judiciary Committee has approved the bill for consideration by the House of Representatives, but a vote has not yet been scheduled.
A related issue has arisen where women have been photographed in public in various states of dress. These photographs have been amassed into products marketed as "Girls Gone Wild" videos. The tapes, as the reviewer describes below, often are of young women who are intoxicated and coaxed into undressing in public.
Girls Gone Wild, a set of videotape films of women nude in public, is sold widely, including on mainstream web sites such as Amazon.com. One Amazon customer who bought the video commented:
"F-ing awesome!, June 30, 2000
[reviewer name and location redacted]
I bought this tape as soon as I saw the TV commercial. I have almost all of the GGW tape series. This one is my favorite. The flashing never stops. There are unbelieveable close ups, plus tons and tons of beautiful large breasted women between 19-25. The best is a scene about 10 mins long where these three blonde beauties are coaxed out of EVERYTHING! They are drunk out of their minds. AMX Video could sell that 10 mins as a video of its own. I bought the Deluxe version. I highly recommend it."
Videos of the "Girls Gone Wild" genre raise basic questions about the right to privacy in public places and issues involving knowledge and consent. Can there be consent when the subject is intoxicated? Does a person who exposes parts of his/her body in public consent to being videotaped? Does that consent extend to viewing by the crowd, or does it extend to all persons in the future who may purchase a video of the act?
A recent case brought by a Florida State University student illustrates how widespread an individual's likeness can be spread as a result of video voyeurism. The student brought suit against the company that films "Girls Gone Wild" alleging that she was secretly filmed while at a Mardi Gras festivities. Shortly after the Mardi Gras celebration, the student's friends reported seeing her on television ads for the Girls Gone Wild tapes. She also appeared on the cover of the video and on the Internet site associated with the video. Images of the student even appeared on billboards in Europe with the caption "American Girls."
Professor Andrew McClurg of the University of Arkansas School of Law argued in a 1995 law review article that a new privacy tort, the tort of "public privacy," may address issues of video voyeurism and invasive videotaping of persons in public. In assigning liability, a court using the public privacy tort would evaluate a number of factors, including whether the defendant disseminated the information collect to others, whether there was a news value to the information, and the defendant's motive.
"Unregulated online data collection is a threat to all consumers. Because women do most of the shopping, and most of the "sharing," in meet space, and their presence is increasing in cyberspace, they are most vulnerable to the slings and arrows of online consumer profilers."
- Professor Ann Bartow
Professor Ann Bartow of the University of South Carolina School of Law argues that collection of information online is of "singular importance to women." This is because women control a majority of personal and household goods spending. As a result, women are special targets for profiling and collection of information. Bartow argues that online data collection needs to be regulated in order to prevent women from being targeted.
Sexual Orientation and Privacy
A November 1997 article in the Washington Post reported that District of Columbia police officers were involved in the practice of blackmailing prominent men and women who were homosexuals but kept their sexual orientation a secret. This practice was known as "fairy shaking." The officers would approach the individuals, and extort money from the victims under the threat of public exposure. The officers involved included high-ranking members of the DC police department, and exposure of the case resulted in the resignation of the police chief. This extortion was made possible by monitoring bars that catered to homosexuals, and by querying the motor vehicles license databases to determine the owners of cars arriving at the bars.
In June 2003, the Supreme Court issued a decision in Lawrence and Garner v. Texas, and struck down a Texas law prohibiting "homosexual conduct." The case probably will invalidate sodomy laws in 13 states. The case stands for the proposition that the Constitution limits the power of the government to prosecute individuals for consensual sexual activity in the privacy of their own homes.
- Lawrence et al., v Texas, No. 02-102 (US 2003).
- Lawrence and Garner v. Texas, Lambda Case Review.
- Libertarians Join Liberals in Challenging Sodomy Law, New York Times, March 19, 2003.
- Cop Pleads Guilty to Anti-Gay Extortion, Datalounge, January 27, 1998.
- Hold It Right There, and Drop That Camera, New York Times, December 11, 2003.
- Voyeurism by cell phone charged, Man accused of sliding camera under woman's skirt in market, Seattle Post-Intelligencer, December 10, 2003.
- Police: GPS device used to stalk woman, CNN.com, December 31, 2002.
- Videotaped Athletes Win Federal Lawsuit, New York Times, December 5, 2002.
- 'Upskirt' photographs deemed lewd but legal, Seattle Times, September 20, 2002.
- A Festival With Nudity Sues a Sex Web Site, New York Times, July 5, 2002.
- Abortion Protesters Use Cameras, Raise New Legal Issues, Lawsuits, Wall Street Journal, May 28, 2002.
- Wild Party Girl Redux, ABA, May 10, 2002.
- Hidden Bedroom Cameras Inspire Video Privacy Bill, Yahoo News (AP), April 16, 2002.
- 'Wild Party Girls' video maker must pay SWT student, Austin American Statesman, February 28, 2002.
- Cheerleaders Say Visiting Players Spied on Them, 29 NFL Teams Sued for Invasion Of Privacy, Emotional Distress, Washington Post, January 24, 2002.
- Bare-breasted Mardi Gras tape spurs suit, Arizona Central (AP), January 22, 2002.
- Man arrested again for looking up skirts, Gainesville Sun (AP), November 23, 2001.
- Proliferation of tiny wireless cameras worries privacy advocates, Boston Globe, September 10, 2001.
- Man Accused of Installing Spy Software, Jefferson City News Tribune (AP), September 6, 2001.
- Prosecuting Video Voyeurism is Tricky, Privacy Journal, July 2000.
- Anita L. Allen, Women, Privacy and Cyberspace, Stanford University Symposium on ìCyberspace and Privacy: A New Legal Paradigm," (2000).
- Anita L. Allen, Reuschlein Lecture: Lying to Protect Privacy, 44 Vill. L. Rev. 161 (1999).
- Anita L. Allen & Erin Mack, How Privacy Got Its Gender, 10 Northern Illinois Law Review 441 (199l).
- Anita L. Allen, Privacy, in Iris Young and Alison Jaggar, eds. A Companion to Feminist Philosophy (Oxford, U.K.: Blackwell, 1998).
- Anita L. Allen, Uneasy Access: Privacy for Women in a Free Society, (Totowa, NJ: Rowman and Littlefield, l988).
- Anita L. Allen, Women and their Privacy: What is at Stake?, in Carol Gould, ed. Beyond Domination (Totowa, NJ.: Rowman and Allanheld, 1983) pp. 233-249. Reprinted in Key Concepts in Critical Theory, ed. By Carol Gould (New Jersey: Humanities Press, (1997) pp. 417-424.
- Ann Bartow, Our Data, Ourselves: Privacy, Propertization, and Gender, 34 U.S.F.L. Rev. 633 (Summer 2000). "Cyberspace briefly held a lot of promise for women. It was the closest we could expect to come to being "brains in... boxes." In cyberspace, we would not be judged by our bodies. No one would know when we were having bad hair days. We would not ever have to wear make-up and high heels. We could even be "men" without hormones or expensive surgery. Then we began shopping and chatting over the Internet. Shortly thereafter, we learned that anyone in cyberspace could ascertain our gender, ages, incomes, education levels, marital status, sizes, consumer purchase proclivities, aspects of our health, and employment histories, and the number, ages, and genders of our children, and that this information could be used to sell us goods and services. Now, instead of brains in boxes, we are "eyeballs with credit cards."
- Ann Bartow, Woman as Targets: The Gender-Based Implications of Online Consumer Profiling, Comment P994809, Docket No. 990811219-9219-01, Federal Trade Commission Online Profiling Workshop, November 8, 1999.
- Antonietta Vitale, Video Voyeurism and the Right to Privacy: The Time for Federal Legislation Is Now, 27 Seton Hall Legis. J. 381 (2003).
- Sally F. Goldfarb, Violence Against Women and the Persistence of Privacy, 61 Ohio St. L.J. 1 (2000).
- Gary T. Marx, Technology and Gender: Thomas I. Voire and the Case of the Peeping Tom, Sociological Quarterly, vol. 43, no. 3, pp. 407-433 (2003).
- Fabio A. Sciarrino, Ferguson v. City of Charleston, The Doctor Will See You Now, Be Sure to Bring Your Privacy Rights In With You, 12 Temp. Pol. & Civ. Rts. L. Rev. 197 (Fall 2002).
- Kapila Juthani, Note: Police Treatment of Domestic Violence and Sexual Abuse: Affirmative Duty to Protect vv. Fourth Amendment Privacy, 59 N.Y.U. Ann. Surv. Am. L. 51 (2003).
- Lauren N. Makar, Fourteenth Amendment - Procreational Autonomy as a Fundamental Attribute of the Privacy Rights- Where the Right to Procreate and the Right Not to Procreate Are in Direct Conflict Over the Disposition of Frozen Embryos, Ordinarily, the Party Wishing to Avoid Procreation Should Prevail. J.B. v. M.B., 12 Seton Hall Const. L.J. 681 (Summer 2002).
- Andrew Koppelman, The Right to Privacy, 2002 U Chi Legal F 105 (2002).
- David D. Kremanetsky, Crimes: Insatiable "Up-Skirt" Voyeurs Force California Lawmakers to Expand Privacy Protection in Public Places, 31 McGeorge L. Rev. 285 (Winter 2000).
- Elizabeth M. Schneider, The Synergy of Equality and Privacy in Women's Rights, 2002 U Chi Legal F 137 (2002).
- Patricia M. Wallace, The Psychology of the Internet, Cambridge University Press, November 1999.
- Julian Dibbell, My Tiny Life: Crime and Passion in a Virtual World, Owl Books, January 1999.
- Cyber-peeping: It's growing, it's frustrating, and it's legal; Officials say there's nothing they can do to stop men from filming up skirts in public places, Orange County Register, June 26, 1998.
- Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C.L. Rev. 989 (Mar. 1995).
- S.1301 Video Voyeurism Act of 2003.
- H.R.3726, The Video Voyeurism Act of 2002. If passed, H.R. 3726 would prohibit the nonconsensual nude or under-clothing photography where there is a reasonable expectation of privacy. The bill was introduced in February 2002 by Representative Michael Oxley (R-OH), and referred to the House Judiciary Committee.
- S.2661 Video Voyeurism Act of 2002. A Senate version of Represenative Oxley's bill introduced by Senator DeWine (D-OH).
- California Penal Code Section § 647(k)(2). California's up-skirt law recognizes a privacy expectation in public places, and prohibits the use of a camera to take images through or under clothing. However, a victim must be identifiable from the photograph, and the State must prove that the image was taken for sexual gratification.
- Louisiana Rev. Stat. Ann. § 283. This comprehensive video voyeurism law was written to cover up-skirt and down-blouse photography.
- Michigan Stat. Ann § 28.807(4). Prohibits video surveillance in private places.
- Mississippi Code § 97-29-63. Prohibits videotaping in public and private places where persons have a legitimate expectation of privacy. This law covers tanning salons, dressing rooms, locker rooms, bedrooms, and bathrooms.
- Ohio Rev. Code § 2907.08. Prohibits the use of a camera to take images through or under clothing.
- Washington RCW § 9A.44.115. Creates felony criminal liability to those who photograph others where they have a legitimate expectation of privacy.
- Wisconsin Stat. § 942.08: Prohibits placement of secret surveillance devices in places where individuals enjoy a reasonable expectation of privacy. Additionally, Wisconsin law prohibits nonconsensual nude photography of persons in private places.
- Minnesota v. Morris, No. CX-01-1753 (Minn. Ct. App 5/14/02). Upholds use of state "peeping tom" law against a video voyeur in a commercial establishment.
- State v. Glas, No. 19111-7-III (Wash. July 5, 2001).
- Datacard Central's Affluent Women Database: "This powerful new database contains the names and home addresses of the richest, most affluent women in America. These individuals maintain high levels of discretionary income, hold diversified investment portfolios and enjoy luxurious lifestyles. Over 300,000 are wives of millionaires and multi millionaires."
- Gender, Law & Politics, Professor Susan E. Gallagher, University of Massachsettes-Lowell.
- Open Letter to Louisiana Governor Foster on House Bill 67, ACLU of Louisiana, June 24, 1999.
- Privacy and Gender Studies, Professor Judit Sándor, Central European University.
- Upskirts.com. Upskirts.com caters to the video voyeurs' fetishes.
- Video Voyeur: The Susan Wilson Story, Lifetime Television. In 1998, Susan Wilson discovered that her neighbor, the local church deacon had, installed cameras in her bathroom and bedroom. Later, Wilson succeeded in having a comprehensive law passed in Louisiana to address video voyeurism.
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Communications Law and Policy
Jerry Kang and Alan Butler