The Petraeus kerfuffle has occupied enough of our attention with its astounding combination of titillation, schadenfreude, espionage, and disbelief that people are still sending shirtless photos of themselves around the internet. The Onion has spoken, and this must surely be the last word on the topic. At the very least, it will be mine.

So I will use this space to suggest something slightly different: that it is entirely appropriate that we focus on data privacy in the context of sex scandals, and that this points to something crucially important for privacy activists. Privacy is of fundamental importance in both the law of sex and tech, and that in this country the combination of concern about sexual autonomy and about technologically-enabled surveillance has been a crucial driver in privacy law. The two – sex and tech – operate in tandem to demonstrate the importance of privacy in our set of basic civil rights.

Consider California, which added the right to privacy to its constitution by amendment in 1972. One of the co-sponsors of the amendment was George Moscone, whose legacy is inextricably tied to that of Harvey Milk. The statement in support of the amendment focuses on the threat of massive data banks – standard fare for the early ’70s. But, given that one of its co-sponsors was a leading San Francisco politician supportive of gay rights, it seems likely that this right to privacy is also meant to protect a sphere of sexual freedom. It seems plausible (though it remains nothing more than a working hypothesis) that the language of surveillance provided cover for a political process to amend the state constitution in a way that would be critical for gay rights – while advancing an important safeguard against other surveillance practices.

The two modalities of privacy operate in very different ways: in the realm of sexual orientation, privacy is a matter of protecting the ability to have an intimate life within a disapproving public sphere. In the realm of surveillance and data banks, privacy is a matter of generalized suspicion toward the state (and toward the financial sector). One is of enormous concern for a minority, while the other is of weaker importance for all. The combination of the two is potent, providing both a motivated core and broad interest in the protection of privacy. I suspect that it is this lack of an organized, motivated core that dooms contemporary American efforts to create robust privacy laws.

Even as cases involving sexuality have been central to the development of privacy law in the United States (think contraception, abortion, homosexuality), the depth of concern in these issues by affected individuals is matched, in many cases, by public opposition. Indeed, this is why privacy is so important in these contexts – privacy is most essential to protect the inner lives of those who, due to public opprobrium, cannot be open. The general problem of surveillance lacks the same immediacy. But it threatens all individuals: male or female, straight or gay, rich or poor, white or black (in each of those dyads, surveillance may be more of a concern for one side than the other). The threat of surveillance creates the possibility for building sizeable coalitions where sexual identity has not always been able to.


The interesting thing here is that the cluster of rights associated with privacy is largely about the protection of one’s inner life, and about the gap that exists between that inner life and the public presentation of the self. Contemporary talk about privacy in the internet age often focuses on the creepiness factor. Lost in the discussion is the immediacy of privacy in the particular context of sexual identity. In part this is because we have made great strides in terms of sexual rights, making the need to fight for privacy less salient. But, as Tyler Clementi’s suicide showed, the combination of sex and surveillance can still be powerful.

The danger of surveillance is of making public the inner life that we only wish to reveal to our closest friends and loved ones. To make one’s inner life public is to destroy the possibility of having an inner life in the first place. The dream of surveillance is a world in which identities are transparent, in which everyone is an open book. This may also be the dream of Zuckerberg. And it’s true that most of us really don’t have much to hide in our day-to-day lives. We go to our jobs or our classes, we do our work, we go home, we meet up with our friends. But sometimes there are parts of our inner lives that we must protect from the gaze of the crowd. And much of this involves sexuality: sexual orientation, abortion, contraception (the resurrection of which as a political issue during this election season caught me off guard), and so on. Privacy matters, even as snooping and sharing information becomes easier by the day.

The attention given to privacy issues in the wake of sex scandals is not a distraction from weightier issues of privacy law – sexuality is one of the most vital elements of our privacy interests and should illustrate the stakes of data privacy. The bloodless language with which privacy activists talk about surveillance is a mistake.