Abstract
As women and members of marginalized communities across the globe are increasingly the targets of online sexual violence and threats, future asylum claims are likely to involve allegations of online sexual privacy violations. This Essay proposes a framework for conceptualizing sexual privacy-threatening online acts, such as deepfake sex videos and nonconsensual pornography, as past persecution under U.S. asylum law. To understand fully the severity of online sexual privacy violations, U.S. federal courts and agency adjudicators must consider the emotional, intersectional, dehumanizing, and amplifying aspects of online sexual privacy violations.
Introduction
Let us imagine that there is a woman named Jane whose ex-boyfriend has created a deepfake sex video of Jane.[1] The video imposes Jane’s face onto another woman’s body engaged in a sexual act. Jane’s ex-boyfriend has posted the video online. Imagine now that Jane and her ex-boyfriend are from Country X. While her ex-boyfriend has stayed in Country X, Jane has fled to the United States and is requesting asylum from the U.S. government. Jane is emotionally traumatized that her ex-boyfriend made such a video and posted it online. She is also afraid that the video will be shared many times on multiple social media platforms. She is scared.[2]
Is Jane eligible for asylum? Is the deepfake sex video evidence of persecution? In other words, does an online sexual privacy violation rise to the level of “persecutory harm”? U.S. asylum law has not yet addressed this issue. Addressing this issue is critical: as women and members of marginalized communities across the globe are increasingly the targets of online sexualized violence and threats,[3] future asylum claims are likely to involve allegations of online sexual privacy violations.[4]
Outside the context of asylum law, American privacy law scholars have argued that online acts and conduct invading an individual’s privacy should be recognized as independent harms warranting relief or remedy.[5] Similarly, there may be circumstances in which online acts or conduct violating an individual’s privacy should be recognized as persecution, requiring asylum protection. There may also be times when a persecutor’s online conduct should give rise to a cognizable asylum claim even in the absence of additional offline events or harm.[6]
This Essay explains how online acts or conduct violating an individual’s sexual privacy, such as deepfake sex videos and nonconsensual pornography, can be conceptualized as past persecution under U.S. asylum law. To provide background for this conceptualization, Part I draws from the scholarship of Danielle Keats Citron to define sexual privacy and online sexual privacy violations.[7] This Part explains how such violations result in unique harms to society and individuals, compelling some individuals to flee their home countries. Following this groundwork, Part II proposes a framework for conceptualizing online sexual privacy violations as past persecution. To understand fully the severity of online sexual privacy violations, U.S. federal courts and agency adjudicators must consider the context in which the violation occurs, the resulting emotional and psychological trauma, the intersectional and dehumanizing aspects of the violation, and the amplifying characteristics of the online realm.
I. Defining Sexual Privacy and Online Sexual Privacy Violations
Sexual privacy involves “the behaviors, expectations, and choices that manage access to and information about the human body, sex, sexuality, gender, and intimate activities.”[8] The concept of sexual privacy describes how individuals’ intimate lives are currently experienced.[9] It also encompasses social norms surrounding intimacy and sexuality.[10] In the panoply of privacy values, sexual privacy is paramount because of its importance to intimacy, sexual agency, self-development, and equality.[11] Through sexual privacy, an individual may come to understand, develop, construct, and express her gender identity or sexuality.[12] In other words, sexual privacy allows an individual to develop and safeguard a core part of her personhood at her own pace and in her preferred manner.[13]
Sexual privacy violations occur when an individual’s body, sexuality, sexual orientation, gender, or sexual history are seen, recorded, photographed, exhibited, revealed, published, disclosed, or circulated offline or online.[14] Online acts that violate an individual’s sexual privacy come in many forms: deepfake sex videos, digital voyeurism, and nonconsensual pornography, to name only a few.[15] While some acts are nonconsensual from the outset, other acts may start off as consensual and then mutate into nonconsensual ones.[16] For example, the practice of “revenge porn” involves the nonconsensual, online circulation of (supposedly or seemingly) consensually-taken photographs of an intimate partner.[17]
Online sexual privacy violations harm society. In the online realm, bad actors threaten or engage in sexual violence as a weapon to intimidate and silence individuals and groups because of their racial, religious, national, social, cultural, political, and gender identities.[18] As a result, individuals have retreated from online spaces, reduced their online presence, masked their online identities, and even left the internet entirely.[19] Given that the online realm may be a vital forum for the freedom of expression and democratic participation for marginalized voices, silencing those voices through online sexual violence “may prevent them from being heard at all, reducing diversity and affecting democratic debate.”[20] Indeed, in the context of offline religious persecution, Judge Richard Posner has observed that one aim of persecuting those of a certain faith “is to drive . . . [the religion’s] adherents underground in the hope that their beliefs will not infect the remaining population.”[21]
Online sexual privacy violations harm individuals. To begin with, online sexual privacy violations may impede an individual’s personal or sexual relationships by chilling her self-expression.[22] She may censor herself online and offline.[23] She may also refrain from her preferred online and offline activities.[24] Significantly, by retreating from online spaces, an individual may lose a critical medium for exploring, developing, and expressing core aspects of her identity, such as her gender identity, sexual orientation, religious affiliation, or political opinions.[25] She may also experience a disruption in her ability to communicate with like-minded individuals and to create and foster her group identities.[26] An individual may even conform her online and offline speech, conduct, or behavior to perceived social norms.[27] As a result, the chilling effects of a bad actor’s online conduct may shape how a person identifies on an individual or group level.[28]
Finally, online sexual privacy violations have forced some individuals to take extreme measures. Some have contemplated or even been driven to suicide.[29] Others have been compelled to flee their home countries, seeking refuge abroad.[30] Are such individuals eligible for asylum in the United States? To answer this question, we must consider whether online sexual privacy violations may amount to persecution under U.S. asylum law.
II. Conceptualizing Online Sexual Privacy Violations as Past Persecution
U.S. asylum law has yet to recognize online sexual privacy violations as persecution. Given that an individual is presumptively eligible for asylum if she has experienced past persecution, [31] it is critical to understand whether an online sexual privacy violation may be evidence of past persecution.
Privacy-threatening online conduct, such as deepfake sex videos, nonconsensual pornography, and revenge porn, may lead to offline harms, including physical violence.[32] It is well-established under U.S. asylum law that physical violence, including torture, beatings, rape, and female genital mutilation, may be evidence of persecution.[33] Courts have also held that past persecution determinations are “very fact-dependent,” requiring a case-by-case analysis.[34] Accordingly, a wide variety of harms may be relevant to an assessment of past persecution.[35] Additionally, courts will consider whether the cumulative or overall effects of individual threats and incidents of harm may, taken together, rise to the level of past persecution.[36] Thus, an asylum claim that involves an online sexual privacy violation and attempted or actual physical harm may amount to past persecution. Returning to the hypothetical at the beginning of this Essay, if, in addition to the deepfake video, Jane’s ex-boyfriend beat or attempted to rape Jane, then she may have experienced harm rising to the level of persecution.
Crucially, under U.S. asylum law, physical harm is not necessary for a finding of past persecution.[37] Rather, a past persecution claim can be based on non-physical harm, such as economic or emotional injuries or repercussions.[38] Similarly, a valid past persecution claim may solely involve threats.[39] Continuing with Jane as an example, if she loses her job or is unable to find employment because of the video, then she may be able to establish a claim of past persecution.[40] As another example, if, in addition to the video, Jane’s boyfriend threatens to rape her, then Jane may have a legally cognizable asylum claim.[41] In all these scenarios involving additional harms or threats, the online sexual privacy violation functions as supporting or corroborating evidence of past persecution.[42]
What if, however, the online act or conduct violating an individual’s sexual privacy does not involve offline harm? Is the concept of sexual privacy relevant to determining whether persecution occurred in such a scenario? In finding that offline conduct amounts to past persecution, U.S. federal courts have occasionally invoked the concept of privacy.[43] Most of these cases have dealt with actual or attempted physical acts or conduct, such as rape,[44] sexual assault,[45] or actions relating to coercive population control.[46] Without specifically referring to “sexual privacy,”[47] these cases have noted that violations of an individual’s bodily integrity are “hallmarks” of persecution,[48] depriving an individual of autonomy related to her body and personal choices,[49] as well as her self-respect and dignity.[50] A few courts have also emphasized that being seen naked or forced into nakedness was part of the harm.[51] In these cases that address offline conduct, the privacy violation has been tied to a physical violation.
But what if the main or only harm is an online sexual privacy violation? Can online conduct that violates an individual’s sexual privacy amount to past persecution by itself? In other words, is such a violation evidence of online persecution?[52] As Fatma Marouf has observed, abstract violations of an asylum-seeker’s privacy may be difficult to visualize, especially in comparison to the graphic and vivid imagery of physical and bodily injuries that are often presented in asylum claims.[53] Online harms may similarly be difficult to recognize, especially if they are not accompanied by or do not result in offline injuries or have offline repercussions.[54] Such difficulty in visualization or recognition does not mean that the harms do not exist. The remainder of this Essay will focus on explaining how online conduct that violates an individual’s sexual privacy may independently amount to past persecution.
A. Mapping to the Elements of an Asylum Claim
Online acts or conduct violating an individual’s sexual privacy may amount to past persecution under U.S. asylum law. To establish past persecution, an asylum-seeker must present evidence that:
(1) the persecutor was the asylum-seeker’s government or a non-state actor whom her government was unable or unwilling to control;
(2) there was a connection—or nexus—between the harm and one or more of the five statutorily protected grounds: race, religion, nationality, membership in a particular social group, or political opinion; and
(3) the past harm was or is severe enough to rise to the level of a “persecutory harm.”[55]
The first element requires demonstrating one of two possible scenarios: (1) the asylum-seeker’s government engaged in the act or conduct resulting in the online sexual privacy violation which, by itself or in conjunction with other harms, threats, acts, or events, rises to the level of persecution; or (2) the asylum-seeker’s government was unable or unwilling to control a non-state actor engaged in such conduct. Returning to the case of Jane, an example under the first scenario would be if Jane’s ex-boyfriend were a government official. An example under the second scenario would be if Jane’s ex-boyfriend were an ordinary citizen whom her government was unable or unwilling to control.
To establish the second element of a past persecution claim, an asylum-seeker must demonstrate that the online conduct resulting in the sexual privacy violation was on account of one of the five statutorily protected grounds.[56] This nexus element may be satisfied even if the persecutor incorrectly imputes a protected ground to the asylum-seeker.[57] Courts have also recognized that a successful claim of persecution may involve one or more statutory grounds, as well as other reasons.[58] An individual seeking asylum must only prove that “at least one central reason” for the harm was due to a protected ground.[59] Thus, the current, judicial approach to nexus recognizes that a persecutor may have a compound or nuanced motivation to harm an individual and, so long as at least one central reason for harming an individual was on account of a protected ground, an individual may have a cognizable asylum claim.
This judicial approach accommodates the unfortunate fact that gender, gender identity, sexual identity, and sexual orientation are not explicitly listed in the Immigration and Nationality Act (INA) or its implementing regulations as independent grounds for asylum.[60] An individual may prevail, however, on a gender- or sexual identity-based claim if she can establish that the persecutor’s conduct was on account of the asylum-seeker’s actual or imputed race, religion, nationality, membership in a particular social group, or political opinion. For example, Jane’s ex-boyfriend may have sent the video to Jane to target her for her religious beliefs. As another example, Jane’s ex-boyfriend may have sent the video to Jane in response to her feminist political opinion.[61] Gender- and sexual identity-based asylum claims may also be characterized as involving the statutory ground of “particular social group,”[62] although this approach has yet to be coherently or consistently recognized.[63]
It is critical to emphasize that online acts and conduct violating an individual’s sexual privacy should not be incorrectly categorized as only involving “domestic,” “interpersonal,” “personal,” or “private” matters that do not warrant the relief of asylum.[64] Such claims are also not solely about “personal revenge” or “personal aggression.”[65] Like offline sexual violence, online sexual violence and privacy-threatening acts and conduct are also not about sex but rather domination, intimidation, and control.[66] Both state and non-state actors may employ such online tactics as a “method of persecution” to dominate, intimidate, and control an individual on account of an actual or imputed protected ground.[67]
In addition, sexual violence by non-state, intimate partners may flow from, be supported by, and reinforce a dominant culture that subordinates women and individuals who do not conform to the dominant culture’s gender norms.[68] For example, an intimate partner’s use of sexual violence—whether it occurs in the online or offline realms—may be a response to the targeted individual holding a belief or political opinion supporting feminism or gender non-conformity.[69] In other words, online sexual violence and privacy violations are not “a quirk within a ‘personal relationship.’”[70] Such gendered online harm should not be trivialized or minimized even if it is inflicted by non-state actors or intimate partners.[71]
Rather, courts and adjudicators must be receptive to recognizing that a government or non-state actor can violate an individual’s sexual privacy in the online realm as a method of persecution.[72] This approach would be in line with courts’ historical approach to offline, sexual- or gender-based harms. Crucially, U.S. federal courts have repeatedly recognized that such harm may be used as a tool to intimidate and silence an individual on account of a statutorily protected ground.[73] As the Seventh Circuit explained in Nakibuka v. Gonzales, sexual- or gender-based harm is one way for persecutors to “send a message” to a targeted individual about what might happen if she continues to identify with a statutorily protected ground, such as continuing to express her political opinions.[74] Courts have recognized that even the threat of or attempt at sexual violence may be used to target and silence an individual on account of a protected ground.[75] As the Seventh Circuit has noted, through such threatened harm, persecutors “express their domination and control” over an individual.[76]
It is important to illustrate how online sexual privacy violations can be wielded as a persecutory weapon. Let us assume that Jane and her boyfriend are from different religious backgrounds. If part of the reason that her ex-boyfriend made the deepfake sex video was to target Jane because of her religion, then Jane may have a viable asylum claim. As another example, we shall assume that Jane and her ex-boyfriend are members of opposing political parties. In creating (and sharing) the deepfake sex video, her ex-boyfriend’s intent may have been to ruin Jane’s reputation and credibility, thereby discrediting her political views, as well as silencing her from further expressing those views.[77]
Finally, returning to the necessary elements to establish a past persecution claim, an asylum-seeker must demonstrate that she experienced a “persecutory harm.” When and how does online conduct that violates an individual’s sexual privacy rise to the level of a persecutory harm? In elevating a harm to persecution, courts have often focused on assessing whether the harm is sufficiently severe.[78] Courts have repeatedly held that harms involving physical, sexual violence are severe enough to rise to the level of persecutory harms.[79] Courts have similarly recognized that emotional or psychological harm by itself may be severe enough to amount to persecution.[80] An offline or in-person threat of death or violence by itself may also amount to past persecutory harm.[81]
Under what conditions and circumstances is an online sexual privacy violation “sufficiently severe”? There are several factors to consider in determining whether a persecutor’s privacy-threatening online conduct rises to the level of a persecutory harm. These factors may increase the severity of the online sexual privacy violation, making it, for the purposes of U.S. asylum adjudications, legally distinguishable from “harassment” or “discrimination.”[82] While there may be other relevant factors, the following ones provide a good starting point.
B. Context
To begin with, context is important. In determining whether a harm or set of harms rises to the level of persecution, courts have repeatedly opined that it is necessary to consider the context in which such harm or harms occurred.[83] For instance, courts have found that a particular harm may be persecutory if it occurs in conjunction with other harms or threats directed at the asylum-seeker or her family, friends, or others.[84] Similarly, courts have explained that a particular instance of harm may have more effect on an individual if it occurs in the context of offline turmoil or human rights abuses in the home country.[85] Even harms that might not individually rise to the level of past persecution may, taken together in the context of other harms or events, amount to past persecution.[86] Similarly, threats may be persecutory based on context.[87]
Context may amplify the severity of the online sexual privacy violation, elevating the violation to a persecutory harm. Returning to the example of Jane, let us sketch out three hypothetical scenarios starting with the premise that the deepfake video depicts rape. Under one scenario, the video is accompanied by a threat to rape Jane’s friend. Under the second scenario, the video coincides with the actual rape of Jane’s friend. And, in the third scenario, the video is shared online during a period of repeated offline violence perpetrated against members of Jane’s religious group. These three scenarios share several potential outcomes. For starters, Jane may experience the online sharing or even the creation of the video as a past traumatic experience because others have been assaulted or threatened offline. While the video alone is horrific, knowing that others were or may be harmed may amplify Jane’s emotional trauma. There is also something inherently terrorizing surrounding the circumstances of the video. As Judge Kim McLane Wardlaw has noted, sexual violence may be “especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law.”[88] Finally, Jane may, of course, fear that she will be physically harmed in the future and, given the circumstances—a video depicting rape that has been widely disseminated online in the context of harm threatened or perpetrated against her or others—her fear would be objectively reasonable.[89]
Returning to our past persecution analysis, it is also important to consider an individual’s characteristics or background in evaluating the severity of an online sexual privacy harm. In the offline context, courts have found that an individual’s characteristics or background may heighten the harm’s effects.[90] Notably, the courts and U.S. government have recognized that a child or elderly person may experience harm more acutely than a middle-aged adult.[91] Social science research has also shown that age may impact an individual’s experience of sexual violence and abuse in the online realm.[92] Thus, assuming that Jane is a teenager, she may be more affected by the video than a middle-aged man would be.
In addition to contextualizing online sexual privacy violations via external circumstances and through the lens of an individual’s background, it is also important to consider that online content and communications may be nuanced or imply meaning through a blend of written, spoken, visual, audio, or video content.[93] Recognizing this multilayered aspect of online content and communication may help to explain the nature and degree of an online threat of sexual violence or sexual privacy violation. Just as courts have acknowledged in the offline context,[94] an implied threat of violence or death in the online realm may similarly rise to the level of a persecutory harm.[95] For example, if the deepfake sex video included a video game character—not a real person—sexually assaulting Jane, that imagery could be construed as an implied threat of sexual assault.[96] Thus, in evaluating the severity of an online sexual privacy violation, it is critical to consider the context in which the violation occurred.
C. Emotional and Psychological Harm
One of the most likely effects of privacy-threatening online conduct is emotional or psychological harm. As noted earlier, under U.S. asylum law, severe emotional or psychological harm may be recognized as persecutory harm by itself—that is, even without accompanying physical or offline harms.[97] Online conduct violating an individual’s sexual privacy may similarly be emotionally traumatic even without accompanying physical or offline harms.[98] The resulting emotional harm from such privacy-threatening online conduct may even be sufficiently severe to rise to the level of persecution.[99]
There are many reasons that online conduct violating an individual’s sexual privacy may result in severe emotional or psychological harm. For starters, an individual may be traumatized if she believes that she is being observed and does not want to be.[100] The emotional harm resulting from such unwanted observation may be acute, ongoing, and even delayed in time.[101] An example of unwanted observation would be Jane’s ex-boyfriend surreptitiously making a video recording of Jane taking a shower. Although nakedness may be involved, it is not necessary.[102] For example, Jane’s ex-boyfriend may record Jane reading a romance or erotic novel in her living room, revealing her personal, sexual interests. In both scenarios, the emotional harm from the unwanted observation may, by itself, be so severe that it rises to the level of persecutory harm.[103] If Jane’s ex-boyfriend then live-streams or posts the recorded video online, the emotional injury or repercussion to Jane may be further amplified.[104]
In addition to the harm of being seen against one’s will, an individual may also be emotionally traumatized from the unwanted exposure of her body or disclosure of intimate photographs or videos.[105] The unwanted disclosure may, on its own, result in severe emotional trauma that rises to the level of persecutory harm. Sharing of the intimate content to other individuals and across online platforms may, then, further compound the asylum-seeker’s psychological injury.[106] For example, in describing the unwanted circulation of a private photograph taken of her in a swimsuit, journalist Ghada Oueiss explained, “It was as if someone had entered my home, my bedroom, my bathroom. I felt so unsafe and traumatized.”[107] Even just knowing that there might be photographs or videos “somewhere” on the internet may cause anxiety.[108]
Just as significantly, an individual may experience severe emotional harm from the unwanted exposure or “outing” of her gender, gender identity, sexual identity, or sexual orientation.[109] For example, let us assume that Jane identifies with a gender identity or sexual orientation that is stigmatized in her home country. A deepfake sex video that reveals Jane’s self-identification may fuel social stigmatization, causing Jane to withdraw inwardly, reduce her online and offline self-expression, and even descend into self-loathing and self-harm.[110]
Privacy-threatening online conduct can thus fuel emotional and psychological harm in multiple, diverse, and severe ways. As the next Subparts will show, three additional aspects of online sexual privacy violations may compound, heighten, and amplify the effects of the violation.
D. Intersectionality
Online harm may involve or be based on an individual’s gender, gender identity, sexual identity, or sexual orientation.[111] As noted earlier, these identities are not listed in the INA and are not consistently recognized as reasons that can by themselves justify a grant of asylum.[112] Declining to recognize these identities as grounds for asylum can lead to a failure to acknowledge gender- and sexual identity-based harms as harms in general and as ones that are sufficiently severe to warrant a grant of asylum.[113] The framework of intersectionality can help to highlight how gender- and sexual identity-based harms in the online realm are harms in the first place and how they can rise to the level of persecutory harm.
Kimberlé Crenshaw developed the framework of intersectionality to explain how Black women in the United States experience employment discrimination (and judicial responses to such discrimination) at the intersection of race and gender.[114] As she explains, an individual’s experience of harm cannot be observed and analyzed along one axis of identity but, rather, at the intersection of her multiple identities:[115]
Discrimination, like traffic through an intersection, may flow in one direction, and it may flow in another. If an accident happens in an intersection, it can be caused by cars traveling from any number of directions and, sometimes, from all of them. Similarly, if a Black woman is harmed because she is in the intersection, her injury could result from sex discrimination or race discrimination.[116]
Scholars and intergovernmental organizations have subsequently applied the framework to describe how marginalized individuals outside the United States may experience harm on multiple levels due to their intersecting identities.[117] American scholars have similarly invoked the framework to explain how individuals’ intersecting identities may affect their experience of sexual privacy violations.[118] Significantly, scholars Roxana Akbari and Stefan Vogler have shown that a failure to embrace the framework in U.S. asylum adjudications may obscure sexual minority women’s experiences of violence and persecution.[119]
Let us return to Jane to illustrate how the intersectionality framework may assist in analyzing asylum claims involving online sexual privacy violations.[120] We shall assume that Country X has a caste system, and Country X classifies Jane as a member of a historically ostracized caste. All members of Jane’s caste have been harmed online and offline in Country X. Let us also assume that Country X is afflicted with systemic misogyny, and Jane identifies as female. In this situation, the deepfake sex video may have more effect on Jane than a male member of her caste. In other words, Jane’s experience of harm is inherently different because she is a female member of the caste. Assume now that women at the top of the caste system have also been targeted with deepfake sex videos. While women at the top of the caste system may also experience the videos as horrific, Jane’s emotional trauma and fear of future harm may be further compounded because she is also a member of the historically marginalized caste.
In this illustration, Jane’s ex-boyfriend may have been motivated to harm Jane on account of her identity as a member of a marginalized caste interlocked with her identity as a woman.[121] In other words, Jane’s experience cannot be explained as only involving caste or only involving gender.[122] Jane’s experience also cannot be understood through a simple addition of the normative marginalized caste experience plus the normative female gender experience.[123] Rather, her experience of past harm and fear of future persecution involve a compounding of the identities of caste and gender.[124]
In the context of asylum law, an asylum-seeker’s experience of harm may be unique and severe because it involves or is based on an individual’s intersecting identities. For example, as Kiruba Munusamy has written, women from marginalized castes in India are targeted online with different content than women from privileged castes. While women from privileged castes are threatened online with sexual violence, women from marginalized ones are insulted as unworthy or too ugly to rape, deemed hereditary sluts, ridiculed for their bodies, policed for their dress, and criticized for their choice of cultural cuisine.[125] Returning to our prior discussion of Jane, let us now imagine a scenario in which the deepfake sex video also mocks Jane’s cultural cuisine. In such a scenario, Jane’s experience of harm may thus be different and more severe than that experienced by others who do not share her intersecting identities of caste and gender.
In short, the severity of an online sexual privacy violation may be compounded when it is predicated on a targeted individual’s intersecting identities. Such a violation may be severe enough to qualify as persecution.
E. Dehumanization
In addition to the compounding effect of intersectionality, the dehumanizing aspect of an online sexual privacy violation may heighten its effect on an asylum-seeker, raising it to the level of a persecutory harm. Deepfake sex videos, nonconsensual pornography, and other forms of online sexual violence and violations are humiliating and degrading.[126] Such acts rise above “unpleasantness, harassment, and…basic suffering.”[127] They strip a targeted individual of her sexual, bodily, and personal autonomy, desecrating her human dignity.[128] An individual’s body is turned into “an object that is no longer completely hers.”[129] Simultaneously, a targeted individual’s identity is reduced to just her body.[130] Others perceive and treat the targeted individual as a sexual object that can be exploited and exposed.[131] She is no longer a person: she becomes a thing to which acts can be done to her.[132]
Recall the hypothetical scenario of Jane being sexually assaulted by a video game character. In such a scenario, Jane is not in control of how and when her body is experienced or revealed. Moreover, both her online persona and offline identity have been potentially reduced to a video image of her body being assaulted by a non-human perpetrator. Such an experience is dehumanizing.
The effects of such dehumanization can be profound. An individual may lose her identity.[133] For example, one targeted individual described the harm like a “murder” to her identity.[134] A targeted individual may also internalize being objectified.[135] She may even feel as though she has “no value” as a person.[136] Dehumanizing online acts may also lead to an increase in other online and offline harms by casting targeted individuals and groups as less worthy of respect and freedom from violence.[137] An individual may experience anxiety anticipating such future harms.[138] The dehumanizing aspect of an online sexual privacy violation may thus increase its severity, elevating it to a persecutory harm.
F. Online Amplification
Finally, in evaluating the severity of an online sexual privacy violation, it is critical to consider the amplifying effects of the online realm.[139] Like all online content, content that violates an individual’s sexual privacy can be easily discovered via search engines such as Google.[140] And, unfortunately, like many acts and conduct on social media, those that violate an individual’s sexual privacy are rarely isolated, one-time incidents: a sexual privacy violation may be retweeted, reposted, and forwarded multiple times across multiple platforms, including in altered and more offensive versions.[141] Social media platforms’ algorithms may then further spread the privacy-threatening content.[142] The online content may, thus, be found on many platforms and reach a wide and varied audience.[143] Although some platforms have processes and some jurisdictions even have laws that are intended to facilitate the removal of sexual privacy-threatening content, the processes can be lengthy, and platforms may be slow to implement the takedown.[144] Moreover, even after the content is removed from the original platform, the content may still appear in search engine results and on other platforms.[145] As a result, an individual may experience an online sexual privacy violation as ongoing and long-lasting.[146] She may even feel as though she cannot escape the online sexual privacy violation.[147] These factors may all amplify the injury or repercussion to the asylum-seeker regardless of whether the online conduct results in privacy-violative, emotional, psychological, reputational, or other harms.[148]
Conclusion
This Essay has explained how online sexual privacy violations may amount to past persecution. In the online realm, governments and non-state actors may engage in sexual privacy-threatening conduct to target individuals on account of their racial, religious, national, social, cultural, political, and gender identities. The resulting harm from such conduct may be so severe that it qualifies as persecution under U.S. asylum law. As this Essay has shown, many factors may increase the severity of online sexual privacy violations, including context, the resulting emotional and psychological trauma, the intersectional and dehumanizing aspects of the violation, and the amplifying characteristics of the online realm.
[1]. A “deepfake” is a hyper-realistic, digitally altered video, image, or audio recording. See Bobby Chesney & Danielle Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 Cal. L. Rev. 1753, 1757 (2019); see also Ben Dickson, What Is a Deepfake?, PC Mag. (Mar. 4, 2020), https://www.pcmag.com/ news/what-is-a-deepfake [https://perma.cc/FQ9P-KGJB].
[2]. See, e.g., Vaiddehi Bansal et al., U.S. Agency for Int’l Dev., GS-10F-0033M / 7200AA18M00016, Landscape of Technology-Facilitated Gender Based Violence: Findings from the Asia Region 12–13, 25–28 (2022), [hereinafter 2022 NORC Report]; Heather Barr et al., Hum. Rts. Watch, “My Life Is Not Your Porn”: Digital Sex Crimes in South Korea 20–21, 40–45, 61–69 (Tom Porteous & Amanda Klasing eds., 2021); Drew Harwell, Fake-Porn Videos Are Being Weaponized to Harass and Humiliate Women: ‘Everybody Is a Potential Target,’ Wash. Post (Dec. 30, 2018), https://www.washingtonpost.com/ technology/2018/12/30/fake-porn-videos-are-being-weaponized-harass-humiliate-women-everybody-is-potential-target [https://perma.cc/DDL4-EBMB].
[3]. See, e.g., 2022 NORC Report, supra note 2, at 7–15; Kurt Thomas et al., SoK: Hate, Harassment, and the Changing Landscape of Online Abuse, Procs. IEEE Symp. on Sec. & Priv. 4–5, 10 (2021); Nithya Sambasivan et al., “They Don’t Leave Us Alone Anywhere We Go”: Gender and Digital Abuse in South Asia, Procs. CHI Conf. on Hum. Factors Computing Sys. 2–3, 6, 9–10 (2019).
[4]. See, e.g., Irene Khan (Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression), Promotion and Protection of the Right to Freedom of Opinion and Expression, ¶¶ 17–23, U.N. Doc. A/76/258 (July 30, 2021) [hereinafter 2021 U.N. Report]; Ashnah Kalemera, Building Digital Literacy and Security Capacity of Women Refugees in Uganda, CIPESA (Dec. 9, 2019), https://cipesa.org/2019/12/building-digital-literacy-and-security-capacity-of-women-refugees-in-uganda [https://perma.cc/LTV4-Y5QS].
[5]. See, e.g., Danielle Keats Citron & Daniel J. Solove, Privacy Harms, 102 B.U. L. Rev. 799, 830–31 (2022).
[6]. See Liane M. Jarvis Cooper, Privacy Harms and Persecution, 31 S. Cal. Interdisc. L.J. 469, 492–93 (2022).
[7]. See generally Danielle Keats Citron, Sexual Privacy, 128 Yale L.J. 1870 (2019) (explaining the significance of sexual privacy in the digital era).
[8]. Id. at 1870.
[9]. See id. at 1874.
[10]. See id. (defining the concept of sexual privacy as both descriptive and normative).
[11]. See id. at 1874, 1883–85.
[12]. See id. at 1883; see, e.g., Anita Gurumurthy et al., Getting It Right Online: Young Women’s Negotiations in the Face of Cyberviolence in Karnataka, IT for Change § 2.1 (2019); see also Anita L. Allen, Coercing Privacy, 40 Wm. & Mary L. Rev. 723, 740 (1999) (explaining that privacy in general allows an individual to “try out new ideas”).
[13]. See Citron, supra note 7, at 1883–88; see also Jeffrey H. Reiman, Privacy, Intimacy, and Personhood, 6 Phil. & Pub. Affs. 26, 39 (1976) (explaining that “privacy is necessary to the creation of selves”).
[14]. See Citron, supra note 7, at 1882, 1901–02.
[15]. See id. at 1909–13, 1917–24.
[16]. See id. at 1918.
[17]. See id.; see also Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 351 (2014) (describing how individuals may pressure their domestic partners to reveal intimate images).
[18]. See, e.g., 2021 U.N. Report, supra note 4, ¶ 23; Gurumurthy et al., supra note 12, § 2.2.
[19]. See, e.g., 2022 NORC Report, supra note 2, at 1, 18, 27, 35; Barr et al., supra note 2, at 40; Gurumurthy et al., supra note 12, § 2.4.
[20]. 2021 U.N. Report, supra note 4, ¶ 23; see, e.g., Gurumurthy et al., supra note 12, §§ 2.3, 4.
[21]. Muhur v. Ashcroft, 355 F.3d 958, 961 (7th Cir. 2004).
[22]. See Citron & Franks, supra note 17, at 385–86.
[23]. See, e.g., 2022 NORC Report, supra note 2, at 1, 18, 27, 35; 2021 U.N. Report, supra note 4, ¶ 13; Gurumurthy et al., supra note 12, §§ 2.4–2.5.
[24]. See, e.g., 2022 NORC Report, supra note 2, at 27–28; Barr et al., supra note 2, at 44–45.
[25]. See, e.g., Gurumurthy et al., supra note 12, §§ 2.1–2.4; Human Rights Council, Report of the Special Rapporteur on the Right to Privacy, ¶ 55, U.N. Doc. A/HRC/40/63 (Oct. 16, 2019); see also Shelley L. Craig & Lauren McInroy, You Can Form a Part of Yourself Online: The Influence of New Media on Identity Development and Coming Out for LGBTQ Youth, 18 J. Gay & Lesbian Mental Health 95, 100–05 (2014).
[26]. See Tamar Megiddo, Online Activism, Digital Domination, and the Rule of Trolls: Mapping and Theorizing Technological Oppression by Governments, 58 Colum. J. Transnat’l L. 394, 400–01 (2020); Craig & McInroy, supra note 25, at 100–05; Anita L. Allen, Gender and Privacy in Cyberspace, 52 Stan. L. Rev. 1175, 1198 (2000).
[27]. See Jonathon W. Penney, Understanding Chilling Effects, 106 Minn. L. Rev. 1451, 1454–55, 1458 (2022); see, e.g., 2022 NORC Report, supra note 2, at 34–35; Gurumurthy et al., supra note 12, § 2.4.
[28]. See Penney, supra note 27, at 1454–55, 1458.
[29]. See, e.g., 2022 NORC Report, supra note 2, at 26; Barr et al., supra note 2, at 42–43.
[30]. See, e.g., Lucy Swinnen et al., Telegram: Where Women’s Nudes are Shared Without Consent, BBC News (Feb. 16, 2022), https://www.bbc.com/news/world-60303769 [https://perma.cc/3Z55-ZF5S]; Barr et al., supra note 2, at 43–44.
[31]. See 8 U.S.C. §§ 1101(a)(42), 1158; 8 C.F.R. §§ 208.13, 1208.13 (2022).
[32]. See, e.g., Sambasivan et al., supra note 3, at 8, 10; Citron & Franks, supra note 17, at 350–51.
[33]. See, e.g., Chand v. INS, 222 F.3d 1066, 1073–74 (9th Cir. 2000) (“Physical harm has consistently been treated as persecution.”); see also Xinbing Song v. Sessions, 882 F.3d 837, 841 (9th Cir. 2017) (as amended) (recognizing torture and beatings as persecutory harm); Abebe v. Gonzales, 432 F.3d 1037, 1042 (9th Cir. 2005) (recognizing female genital mutilation as persecutory harm); Hernandez-Montiel v. INS, 225 F.3d 1084, 1097 (9th Cir. 2000) (recognizing rape and sexual assault as persecutory harm), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005).
[34]. Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000); see also Ordonez-Quino v. Holder, 760 F.3d 80, 87–88 (1st Cir. 2014).
[35]. See Ordonez-Quino, 760 F.3d at 87 (noting that “[p]ersecution is a fluid term, not defined by statute”).
[36]. See, e.g., Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861–62 (11th Cir. 2007); Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1257–58 (11th Cir. 2007); Mashiri v. Ashcroft, 383 F.3d 1112, 1121 (9th Cir. 2004); Matter of O-Z- & I-Z-, 22 I&N Dec. 23, 25–26 (BIA 1998).
[37]. See, e.g., Kovac v. INS, 407 F.2d 102, 105–07 (9th Cir. 1969); see also Li v. U.S. Att’y Gen., 400 F.3d 157, 166 (3d Cir. 2005).
[38]. See, e.g., Matter of T-Z-, 24 I&N Dec. 163, 170–75 (BIA 2007) (economic harm); Mashiri, 383 F.3d at 1120–21 (emotional harm).
[39]. See, e.g., Bedoya v. Barr, 981 F.3d 240, 247 (4th Cir. 2020); Crespin-Valladares v. Holder, 632 F.3d 117, 126–27 (4th Cir. 2011); Thomas v. Ashcroft, 359 F.3d 1169, 1179 (9th Cir. 2004).
[40]. See, e.g., Ming Dai v. Sessions, 884 F.3d 858, 870 (9th Cir. 2018) (job loss), vacated and remanded on other grounds, Garland v. Ming Dai, 141 S.Ct. 1669 (2021); Vitug v. Holder, 723 F.3d 1056, 1065 (9th Cir. 2013) (inability to find a job).
[41]. See, e.g., Nakibuka v. Gonzales, 421 F.3d 473, 477 (7th Cir. 2005) (threat of rape).
[42]. See Jarvis Cooper, supra note 6, at 487.
[43]. See id. at 474–75.
[44]. See, e.g., Kaur v. Wilkinson, 986 F.3d 1216, 1222, 1224 (9th Cir. 2021).
[45]. See, e.g., Kholyavskiy v. Mukasey, 540 F.3d 555, 570 (7th Cir. 2008).
[46]. See, e.g., Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011); Qiao Hua Li v. Gonzales, 405 F.3d 171, 179 (4th Cir. 2005).
[47]. Although he did not use the term, sexual privacy, Judge Roger L. Gregory explained in a dissenting opinion that a bodily invasion can also amount to a privacy violation. See Qiao Hua Li, 405 F.3d at 183 (Gregory, J., dissenting). Importantly, Judge Gregory also emphasized that the privacy violation can be ongoing, noting that the nonconsensual insertion and continued required usage of an intrauterine device amounted to persecution, in part, because such acts involved “both a violation of [the asylum-seeker’s] bodily privacy and a continuing invasion of that privacy.” Id. (emphasis in the original).
[48]. See, e.g., Kaur, 986 F.3d at 1222–24.
[49]. See, e.g., Mei Fun Wong, 633 F.3d at 72.
[50]. See, e.g., Kholyavskiy, 540 F.3d at 570.
[51]. See, e.g., id.; Matter of O-Z- & I-Z-, 22 I&N Dec. 23, 25–26 (BIA 1998).
[52]. See Jarvis Cooper, supra note 6, at 473 (defining “online persecution” as “online conduct, manipulation, threats, words, or acts that are on account of a ground protected under U.S. asylum law and have resulted or may result in a sufficiently severe injury”).
[53]. See Fatma E. Marouf, The Rising Bar for Persecution in Asylum Cases Involving Sexual and Reproductive Harm, 22 Colum. J. Gender & L. 81, 116 (2011).
[54]. See, e.g., Yuntao Hao v. Whitaker, 746 F. App’x 636, 637 (9th Cir. 2018) (summarily holding that the asylum-seeker had not suffered past persecution because the “only harm” was the government’s order requiring him to shut down his blog).
[55]. See 8 U.S.C. §§ 1101(a)(42), 1158; 8 C.F.R. §§ 208.13, 1208.13 (2022); INS v. Elias-Zacarias, 502 U.S. 478, 481–82 (1992) (requiring a nexus between the harm and a protected ground). In 2020, the Departments of Homeland Security and Justice published a final rule intending to add, for the first time, regulatory definitions for “persecution” and “nexus” at 8 C.F.R. §§ 208.1, 1208.1. See Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 80,274, 80,281, 80,385–86, 80,394–95 (Dec. 11, 2020). The rule is currently enjoined from taking effect. See Pangea Legal Services (II) v. DHS, 512 F. Supp. 3d 966, 977 (N.D. Cal. 2021). Even if the rule were to take effect, a successful asylum claim would still require establishing the three elements discussed in this Essay.
[56]. See 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. §§ 208.13, 1208.13 (2022); Elias-Zacarias, 502 U.S. at 481–82.
[57]. See, e.g., Javed v. Holder, 715 F.3d 391, 393, 396–97 (1st Cir. 2013); Amanfi v. Ashcroft, 328 F.3d 719, 730 (3d Cir. 2003).
[58]. See, e.g., Rodriguez Tornes v. Garland, 993 F.3d 743, 751 (9th Cir. 2021); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc); Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013); Aliyev v. Mukasey, 549 F.3d 111, 116 (2d Cir. 2008); Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232–33 (11th Cir. 2007); Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1376–77 (11th Cir. 2006); see also Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009).
[59]. See 8 U.S.C. § 1158(b)(1)(B)(i) (providing that “at least one central reason” for harming the asylum-seeker must be due to a statutorily protected ground); 8 C.F.R. §§ 208.13, 1208.13 (2022). While this Essay focuses on the relief of asylum, it is notable that an applicant for withholding of removal may only need to demonstrate that her protected ground was “a reason” for the persecutor’s conduct. Courts have interpreted this standard as less demanding than the one required for asylum. See Guzman-Vasquez v. Barr, 959 F.3d 253, 270–74 (6th Cir. 2020); Barajas-Romero v. Lynch, 846 F.3d 351, 357–60 (9th Cir. 2017); but see Matter of C-T-L-, 25 I&N Dec. 341, 348 (BIA 2010); see generally 8 U.S.C. § 1231; 8 C.F.R. §§ 208.16, 1208.16 (governing the relief of withholding of removal).
[60]. See 8 U.S.C. §§ 1101(a)(42), 1158; 8 C.F.R. §§ 208.13, 1208.13 (2022).
[61]. See, e.g., Rodriguez Tornes, 993 F.3d at 752–53 (finding that the asylum-seeker was persecuted on account of her feminist political opinion); Fatin v. INS, 12 F.3d 1233, 1242 (3d Cir. 1993) (noting that the court has “little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes” but denying relief on other grounds).
[62]. See, e.g., Doe v. U.S. Att’y Gen., 956 F.3d 135, 142–43 (3d Cir. 2020); Bringas-Rodriguez, 850 F.3d at 1073; Hernandez-Montiel v. INS, 225 F.3d 1084, 1094–95 (9th Cir. 2000), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005); see also Vitug v. Holder, 723 F.3d 1056, 1065 (9th Cir. 2013); Ayala v. U.S. Att’y Gen., 605 F.3d 941, 949–50 (11th Cir. 2010); Nabulwala v. Gonzales, 481 F.3d 1115, 1117 (8th Cir. 2007); Moab v. Gonzales, 500 F.3d 656, 661 n.2 (7th Cir. 2007); Matter of Toboso-Alfonso, 20 I&N Dec. 819, 822–23 (BIA 1990).
[63]. Compare Mendez Maldonado v. Garland, No. 19-60523, 2022 WL 72350, at *1–2 (5th Cir. Jan. 7, 2022) (finding that the proposed social group of Salvadoran women does not constitute a particular social group) and Chicas-Mejia v. Garland, 856 F. App’x 772, 774–76 (10th Cir. 2021) (rejecting the proposed social group of Honduran women in domestic relationships who are unable to leave) with Ibarra-Avilez v. Garland, No. 19-60273, 2022 WL 175538, at *2, 6 (5th Cir. Jan. 19, 2022) (noting that “there is no dispute that [asylum-seeker] Ibarra is a member of a cognizable particular social group: male to female transgender persons”) and Velasquez-Martinez v. Garland, 852 F. App’x 240, 242–43 (9th Cir. 2021) (remanding to the Board of Immigration Appeals to consider the proposed social group of female victims of gender-based violence).
[64]. See Rodriguez Tornes, 993 F.3d at 755 (Paez, J., concurring) (rejecting the presumption that domestic violence is “motivated by nothing more than the private dynamics of a ‘personal relationship’”).
[65]. See Uwais v. U.S. Att’y Gen., 478 F.3d 513, 518 (2d Cir. 2007) (admonishing the Board of Immigration Appeals for perfunctorily assuming that the rape was solely motivated by “personal aggression”).
[66]. See, e.g., 2022 NORC Report, supra note 2, at 23–24; see Ali v. Ashcroft, 394 F.3d 780, 787 (9th Cir. 2005) (admonishing the immigration judge for relying on the myth that rape is about sex instead of domination and control); Angoucheva v. INS, 106 F.3d 781, 790 (7th Cir. 1997) (rejecting the notion that sexual assault is motivated by sexual attraction).
[67]. Ali, 394 F.3d at 787; see also Silaya v. Mukasey, 524 F.3d 1066, 1070–72 (9th Cir. 2008).
[68]. See Marisa Silenzi Cianciarulo, Batterers as Agents of the State: Challenging the Public/Private Distinction in Intimate Partner Violence-Based Asylum Claims, 35 Harv. J.L. & Gender 117, 121–22, 157, 162, 166 (2012); see also Fatma Marouf, Becoming Unconventional: Constricting the ‘Particular Social Group’ Ground for Asylum, 44 N.C. J. Int’l L. 487, 513 (2019).
[69]. See Cianciarulo, supra note 68, at 121–22, 157, 162, 166.
[70]. Rodriguez Tornes v. Garland, 993 F.3d 743, 756 (9th Cir. 2021) (Paez, J., concurring).
[71]. See Danielle Keats Citron, Law’s Expressive Value in Combating Cyber Gender Harassment, 108 Mich. L. Rev. 373, 392–95 (2009).
[72]. See, e.g., 2021 U.N. Report, supra note 4, ¶ 23.
[73]. See, e.g., Uwais v. U.S. Att’y Gen., 478 F.3d 513, 517–18 (2d Cir. 2007); Ali v. Ashcroft, 394 F.3d 780, 786–87 (9th Cir. 2005).
[74]. Nakibuka v. Gonzales, 421 F.3d 473, 477 (7th Cir. 2005); see also Kaur v. Wilkinson, 986 F.3d 1216, 1222 (9th Cir. 2021); Hernandez-Chacon v. Barr, 948 F.3d 94, 105 (2d Cir. 2020); Ali, 394 F.3d at 787.
[75]. See, e.g., Kaur, 986 F.3d at 1218, 1227; Nakibuka, 421 F.3d at 477.
[76]. Nakibuka, 421 F.3d at 477.
[77]. See Chesney & Citron, supra note 1, at 1776–78.
[78]. See, e.g., Bondarenko v. Holder, 733 F.3d 899, 908–10 (9th Cir. 2013); Vladimirova v. Ashcroft, 377 F.3d 690, 693–96 (7th Cir. 2004); Chand v. INS, 222 F.3d 1066, 1073–74 (9th Cir. 2000).
[79]. See, e.g., Haider v. Holder, 595 F.3d 276, 287 (6th Cir. 2010); Abebe v. Gonzales, 432 F.3d 1037, 1042 (9th Cir. 2005); Hernandez-Montiel v. INS, 225 F.3d 1084, 1097–98 (9th Cir. 2000), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005); cf. Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1079 (9th Cir. 2015) (holding that physical, sexual violence can constitute torture).
[80]. See, e.g., Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir. 2006); Mashiri v. Ashcroft, 383 F.3d 1112, 1120–21 (9th Cir. 2004).
[81]. See, e.g., Tairou v. Whitaker, 909 F.3d 702, 704, 707–08 (4th Cir. 2018); Thomas v. Ashcroft, 359 F.3d 1169, 1179 (9th Cir. 2004).
[82]. See Gjetani v. Barr, 968 F.3d 393, 397 (5th Cir. 2020) (noting that persecution differs from harassment); Kadri v. Mukasey, 543 F.3d 16, 21 (1st Cir. 2008) (commenting that persecution is more than discrimination).
[83]. See, e.g., Jiang v. Gonzales, 485 F.3d 992, 997 (7th Cir. 2007); Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004).
[84]. See, e.g., Herrera-Reyes v. U.S. Att’y Gen., 952 F.3d 101, 111–12 (3d Cir. 2020); Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1233–34 (11th Cir. 2007); Krotova v. Gonzales, 416 F.3d 1080, 1087 (9th Cir. 2005); Khup v. Ashcroft, 376 F.3d 898, 904 (9th Cir. 2004); Matter of O-Z- & I-Z-, 22 I&N Dec. 23, 25–26 (BIA 1998).
[85]. See, e.g., Ouda v. INS, 324 F.3d 445, 453–54 (6th Cir. 2003); Korablina v. INS, 158 F.3d 1038, 1045 (9th Cir. 1998).
[86]. See, e.g., Delgado v. U.S. Att’y Gen., 487 F.3d 855, 861–62 (11th Cir. 2007); Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1257–58 (11th Cir. 2007); Mashiri v. Ashcroft, 383 F.3d 1112, 1121 (9th Cir. 2004); Matter of O-Z- & I-Z-, 22 I&N Dec. at 25–26.
[87]. See, e.g., Doe v. U.S. Att’y Gen., 956 F.3d 135, 144 (3d Cir. 2020); Herrera-Reyes, 952 F.3d at 111–12; Tamara-Gomez v. Gonzales, 447 F.3d 343, 348–49 (5th Cir. 2006); Salazar-Paucar v. INS, 281 F.3d 1069, 1074–75 (9th Cir. 2002), as amended by 290 F.3d 964 (9th Cir. 2002).
[88]. Kaur v. Wilkinson, 986 F.3d 1216, 1219 (9th Cir. 2021).
[89]. See 8 U.S.C. §§ 1101(a)(42), 1158; 8 C.F.R. §§ 208.13, 1208.13 (2022); INS v. Cardoza-Fonseca, 480 U.S. 421, 430–31, 440 (1987) (providing that, to establish asylum eligibility, an individual must demonstrate both an objective and subjective fear of future persecution).
[90]. See, e.g., Ordonez-Quino v. Holder, 760 F.3d 80, 91–92 (1st Cir. 2014); Kholyavskiy v. Mukasey, 540 F.3d 555, 569–70 (7th Cir. 2008).
[91]. See, e.g., Ordonez-Quino, 760 F.3d at 91–92; Kholyavskiy, 540 F.3d at 569–70; U.S. Citizenship & Immigr. Servs., RAIO Directorate – Officer Training Module on the Definition of Persecution and Eligibility Based on Past Persecution § 3.2.5 (Dec. 20, 2019).
[92]. See Malin Joleby et al., Experiences and Psychological Health Among Children Exposed to Online Child Sexual Abuse – A Mixed Methods Study of Court Verdicts, 27 Psych., Crime & L. 159, 170–77 (2021).
[93]. See, e.g., Yi Zhou et al., Multimodal Learning for Hateful Memes Detection, IEEE Int’l Conf. on Multimedia & Expo Workshops 1–2 (2021) (proposing a technical methodology for detecting implied meaning in memes); Elina Vaahensalo, Creating the Other in Online Interaction: Othering Online Discourse Theory, in The Emerald International Handbook of Technology-Facilitated Violence and Abuse 227, 236 (Jane Bailey, Asher Flynn & Nicola Henry eds., 2021) (describing the use of subtle othering in online communications).
[94]. See, e.g., Aldana-Ramos v. Holder, 757 F.3d 9, 17 (1st Cir. 2014); Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1233–34 (11th Cir. 2007).
[95]. See Liane M. Jarvis Cooper, Social Media and Online Persecution, 35 Geo. Immigr. L.J. 749, 783 (2021).
[96]. See, e.g., Emma Alice Jane, ‘Back to the Kitchen, Cunt’: Speaking the Unspeakable About Online Misogyny, 28 Continuum: J. Media & Cultural Studs. 558, 562 (2014).
[97]. See, e.g., Mashiri v. Ashcroft, 383 F.3d 1112, 1120–21 (9th Cir. 2004); Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir. 2006).
[98]. See Citron, supra note 7, at 1926.
[99]. See Jarvis Cooper, supra note 6, at 496.
[100]. See M. Ryan Calo, The Boundaries of Privacy Harm, 86 Ind. L.J. 1131, 1133, 1142, 1144–47 (2011) (describing the privacy harm of “the perception of unwanted observation”).
[101]. See id. at 1144–46; Citron, supra note 7, at 1926.
[102]. See Citron, supra note 7, at 1900–02.
[103]. See id. at 1926.
[104]. See, e.g., Citron & Franks, supra note 17, at 372; see also discussion infra Part II.F.
[105]. See Citron & Franks, supra note 17, at 372; Citron, supra note 7, at 1886–87.
[106]. See discussion infra Part II.F.
[107]. Olivia Solon, ‘I Will Not Be Silenced’: Women Targeted in Hack-and-Leak Attacks Speak Out About Spyware, NBC News (Aug. 1, 2021, 3:00 AM), https://www.nbcnews.com/tech /social-media/i-will-not-be-silenced-women-targeted-hack-leak-attacks-n1275540 [https://perma.cc/95T5-X3ZM].
[108]. See, e.g., Barr et al., supra note 2, at 5, 40.
[109]. See Citron, supra note 7, at 1884.
[110]. See id.; Sambasivan et al., supra note 3, at 9.
[111]. See, e.g., 2022 NORC Report, supra note 2, at 1 (finding that, in Asia, “overwhelming evidence indicates that there is a gender and sexual identity-based component of who experiences technology-facilitated violence”); Human Rights Council, supra note 25, ¶¶ 69–75 (reporting the growing body of international, regional, and national research documenting gender-based digital violence).
[112]. See discussion supra Part II.A.
[113]. See, e.g., Mendez Maldonado v. Garland, No. 19-60523, 2022 WL 72350, at *1–2 (5th Cir. Jan. 7, 2022); Chicas-Mejia v. Garland, 856 F. App’x 772, 774–76 (10th Cir. 2021); see
also Roxana Akbari & Stefan Vogler, Intersectional Invisibility: Race, Gender, Sexuality, and the Erasure of Sexual Minority Women in US Asylum Law, 46 L. & Soc. Inquiry 1062,
1080–86 (2021).
[114]. See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 139–50.
[115]. See id. at 140, 149.
[116]. Id. at 149.
[117]. See, e.g., Julie Posetti et al., UNESCO, The Chilling: Global Trends in Online Violence Against Women Journalists 16, 23–24 (2021); Human Rights Council, Report of the Special Rapporteur on Online Violence Against Women and Girls From a Human Rights Perspective, ¶ 28, U.N. Doc. A/HRC/38/47 (June 18, 2018).
[118]. See, e.g., Citron, supra note 7, at 1893; Mary Anne Franks, Democratic Surveillance, 30 Harv. J.L. & Tech. 425, 464–473 (2017).
[119]. See Akbari & Vogler, supra note 113, at 1080–88 (empirically documenting courts’ failure to recognize sexual minority women’s claims of persecution, including their narratives of sexual violence, and calling on courts to embrace intersectional approaches to asylum claims).
[120]. This fictional example is based on research by Anita Gurumurthy and her colleagues. See Gurumurthy et al., supra note 12, §§ 2.2, 4.
[121]. Compare Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1371–72, 1376–77 (11th Cir. 2006) (describing, in a withholding of removal case, harm that occurs at the intersection of race, religion, and gender but only focusing on the statutorily protected ground of race) with Rodriguez Tornes v. Garland, 993 F.3d 743, 755–57 (9th Cir. 2021) (Paez, J., concurring) (noting that the Board of Immigration Appeals failed to consider the intersectional bases for the violence that the asylum-seeker experienced).
[122]. See Akbari & Vogler, supra note 113, at 1088; Crenshaw, supra note 114, at 140, 166–67.
[123]. See Trust Kupupika, Shaping Our Freedom Dreams: Reclaiming Intersectionality Through Black Feminist Legal Theory, 107 Va. L. Rev. Online 27, 35 (2021).
[124]. See Crenshaw, supra note 114, at 148; see also Intersectional Feminism: What It Means and Why It Matters Right Now, UN Women (July 1, 2020), https://www.unwomen.org/ en/news/stories/2020/6/explainer-intersectional-feminism-what-it-means-and-why-it-matters [https://perma.cc/XTS8-YH8V].
[125]. See Kiruba Munusamy, Intersection of Identities: Online Gender and Caste Based Violence, GenderIT.org (June 7, 2018), https://genderit.org/articles/intersection-identities-online-gender-and-caste-based-violence [https://perma.cc/R7XS-3ZU7].
[126]. See Roni Rosenberg & Hadar Dancig-Rosenberg, Reconceptualizing Revenge Porn, 63 Ariz. L. Rev. 199, 220 (2021).
[127]. Kadri v. Mukasey, 543 F.3d 16, 21 (1st Cir. 2008) (explaining that persecution generally “rises above unpleasantness, harassment, and even basic suffering”).
[128]. See Rosenberg & Dancig-Rosenberg, supra note 126, at 220–21, 227.
[129]. Id. at 220.
[130]. See id.
[131]. See Citron, supra note 7, at 1925.
[132]. See id.; see also Jane, supra note 96, at 562.
[133]. See Rosenberg & Dancig-Rosenberg, supra note 126, at 220.
[134]. Barr et al., supra note 2, at 36.
[135]. See, e.g., 2022 NORC Report, supra note 2, at 19.
[136]. See Swinnen et al., supra note 30.
[137]. See, e.g., 2022 NORC Report, supra note 2, at 7–8, 18.
[138]. See Jarvis Cooper, supra note 6, at 497.
[139]. See Jarvis Cooper, supra note 95, at 752, 773–77; Citron & Franks, supra note 17, at 350.
[140]. See, e.g., Barr et al., supra note 2, at 32.
[141]. See, e.g., id. at 30–31.
[142]. See, e.g., Hannah Roberts, Four Law Firms Take Action Against Facebook in $150B Legal Action for Rohingya Refugees, Law.com (Dec. 7, 2021, 6:05 AM), https://www.law.com/2021/12/07/four-law-firms-take-action-against-facebook-in-150b-legal-action-for-rohingya-refugees-292-102744 [https://perma.cc/JA8K-WRRN].
[143]. See, e.g., Barr et al., supra note 2, at 31.
[144]. See, e.g., id. at 31–32; Leonie Cater, How Europe’s Privacy Laws Are Failing Victims of Sexual Abuse, Politico (Jan. 13, 2021, 12:00 PM), https://www.politico.eu/ article/how-europe-privacy-laws-are-failing-victims-of-sexual-abuse [https://perma.cc/7ER2-ZHHY].
[145]. See, e.g., Barr et al., supra note 2, at 10, 32.
[146]. See, e.g., id. at 37; Citron, supra note 7, at 1924–28.
[147]. See, e.g., Barr et al., supra note 2, at 37; Citron, supra note 71, at 398–99.
[148]. See Jarvis Cooper, supra note 95, at 752, 7
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