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Other than their queerness, many shared similar thoughts and strategies about sharing personal information in an environment with strong disclosure norms. A plurality felt that sharing intimate images was impliedly necessary, with the pressure to disclose particularly strong among gay men. Stephen P., a gay app user from Boston, noted that “if you don’t share photos, you can’t really participate.” Jason R. admitted that “it’s the culture; [it’s] hard to avoid.” Others shared photos to verify their identity to others, while some shared photos in the name of sex positivity.
Despite this, significant majorities share with the expectation that their images will not be disseminated further. And many take steps to determine the trustworthiness of the people they meet online. Some anonymize their photos, sending intimate images without faces or other identifying characteristics. Many only share photos, graphic or otherwise, after “chatting with the other person” for some time — ranging from a few hours to a few weeks — sufficient to “develop a rapport” or, as Jared S. responded, “feel somewhat comfortable with the other person.” Often, users share intimate photos only after another user has shared with them, maintaining power in a social exchange for as long as possible and relying on reciprocity and mutual vulnerability to reduce the likelihood of bad behavior. And many rely on the comfort and familiarity of an app’s exclusive queerness. John H. noted that “someone who is also gay, also about the same age, also single, also lonely, also looking for the same thing you’re looking for, just seems less likely to hurt you than someone else who doesn’t share the same personal narrative.”
These strategies help develop trust among users, which facilitates disclosure. But trust cannot operate alone. The design of the platforms — the socially constructed processes and code that make them function — and the laws governing behavior of users on the platforms have to work together to buttress trust norms and ensure our safety.
Right now, the law isn’t helping. Tort law, the regime we use to seek damages from harassers, has been ineffectual because many courts look at gay people sharing selfies and conclude that they gave up their privacy the moment they clicked “send.” Despite the tireless work of advocates, we’ve only just introduced a federal revenge porn bill. And the federal law we do have, Communications Decency Act Section 230, immunizes digital platforms from most legal liability associated with the bad behavior of their users. That means that dating apps can ignore hundreds of complaints from their users about harassment, racism and invasions of privacy. They know no one is going to punish them for their negligence.
That makes us entirely dependent on the design choices of the platforms themselves. Hinge made a commitment to privacy by designing in automatic deletion of all communications the moment users delete their accounts. Scruff, another gay-oriented app, makes it easy to flag offending accounts within the app and claims to respond to all complaints within 24 hours. Grindr, on the other hand, ignored 100 complaints from Mr. Herrick about his harassment. If, as scholars have argued, Section 230 had a good-faith threshold, broad immunity would be granted only to those digital platforms that deserve it.
Privacy isn’t anathematic to online dating. Users want it, and they try hard to maintain it. The problem isn’t sharing intimate selfies, no matter what victim-blamers would have us believe. The problem is the law permits the development of apps that are unsafe by design.
Ari Ezra Waldman is a professor of law and the founding director of the Innovation Center for Law and Technology at New York Law School.
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