‘The most important part of any enterprise is the way it is
begun… that is when a thing is best moulded, and when it takes on whatever
stamp one wants to impress on it.’ – Plato, The Republic
This is the quote from Plato that came to mind when it was
revealed at the SCL’s latest event that, currently, the sextech industry is
valued at around $30 billion. And if like me you were wondering what exactly is
sextech, a loose definition according to Cindy Gallop (an outspoken sextech
advocate) is ‘any form of technology or tech venture that enhances, innovates
and disrupts in any area of human sexuality and sexual experience’.[1]
Given such a broad definition, as the evening progressed at
the SCL event on Sextech, Porn and the Law, it became clear that our main
concern should be to question how this enterprise, sextech, which is only now beginning
to take form, could best be ‘moulded’ – and who will impress the stamp and what
form that will create.
Dr Kate Devlin
The evening began with Dr Kate Devlin, Senior Lecturer in
the Department of Computing at Goldsmiths, University of London. The focus of
her research has been to explore the ethics and legality of the industry by
asking the right questions. For example, we should be questioning why we are choosing
to create sex robots to resemble humans when there is such a large scope for
creativity but, more importantly, the question of what kind of society are we
building ought to be seriously considered.
Sextech-enabled devices would most likely be able to record
your sexual habits – how often you engage in sexual activities, possibly your
partners, the length of time etc. At the most basic level, this would normally
be the type of information that one would not want someone else to have a
record of. Consider then for a moment a society where such information could be
used to blackmail you if hacked or where such behaviour might be criminal. Her argument was that, given the size of the
industry and the ever-advancing technological capabilities, we need to be
shaping the development of sextech towards the direction that is the most
ethical. Especially whilst we are still in the early stages where the industry
is a relatively niche concept rather than mainstream – once it becomes mainstream,
it would be harder to shape the protections and freedoms we might want to promote
in relation to this industry.
Sarah Jamie Lewis
Building on this with a focus on how sextech might affect our
view of privacy, Sarah Jamie Lewis, a well renowned anonymity & privacy
researcher, encouraged the audience to question at what point privacy stops and
fails. Her main point being we deserve consensual technology. In a society
where your sexual habits could potentially be used against you, we need to
think for example if such devices need to be metadata resistant so that, if the
information were to be subpoenaed, it couldn’t reveal that much. Currently, the
development of these technologies seems to focus on being ever more innovative rather
than considering the true ramifications of being in an ever-connected world.
Where it concerns individual privacy, there is already a
fear that greater surveillance might have an Orwellian effect where, because
everyone is worried about the consequences of being surveilled, all incline to
the mainstream especially where one is worried about third-party access.
Whilst possibly giving a new meaning to sensitive data, it
could also have the adverse effect of limiting sexual freedoms. If there is a
capacity for data to be fingerprinted, how do we ensure that users who do
choose to use such devices have true control and know who has their data? For
example, in the situation where a company that manufactures these devices and
collects the information goes out of business or is hacked, how could users be
best protected?
Ultimately, Sarah Jamie Lewis advocated for a fine balance
between the public and private approach, the main question being: how do we
build technology responsibly in a way that isn’t puritanical but protects
everyone? In short, the power of default in the digital age shouldn’t be
underestimated and in this area the default should be to protect.
Pandora Blake
Pandora Blake, feminist pornographer and sexual freedom
campaigner, followed through with a more practical view of how the regulations
have thus far failed to protect and regulate in general in the non-sextech
revolutionised world and how this gap could be filled while we still have the
chance. She went through the current extensive regulatory framework and the
disconnect that currently exists, pointing out that this development in sextech
could offer the chance for us to regulate sensibly, filling in the gaps and
correcting the failings thus far in regulating sex in the UK. For example,
although the Obscene Publications Act was originally passed in 1959, it still
forms the basis of the law regulating obscenity in England and Wales. Although,
clearly, society has since moved on from what may have been considered as
obscene back then, the Act still informs new laws. Considering Brexit, she also
questioned how data protection would operate in principle, particularly given
that the Digital Economy Act 2017, makes no mention of adequate privacy
protections or if its enforcement would be proportionate. Once again the
question that emerged was: in light of this, what kind of world do we want to
build?
Neil Brown
Neil Brown, Managing Director of decoded:Legal, finished off
the evening with a comprehensive introduction to how developments in sextech
may affect our current understanding of four main areas: privacy, safety, crime
and relationships.
In relation to human relationships, he questioned
traditional laws such as whether one could marry a robot and what it would mean
for traditional concept such as divorces under the Matrimonial Causes Act. And
if you were wondering, sex with a robot currently won’t constitute adultery or
be grounds for divorce.
When it came to privacy, he touched upon what the previous
panellists had illustrated- we need to be thinking twice about who we are
ceding our control to when it comes to third parties. Will they always
adequately protect our interests? Think about when you are updating your phone,
it always seems more like a hostage situation where you are being told ‘update
now, or else you can’t use this device at all’. Most of us begrudgingly accept
the terms and conditions if we want to continue using our shiny data mining
devices. Where it concerns sextech, this brings to the fore a real issue: are
you truly consenting if your tech-enabled sextech device tells you to update
and it perhaps has some questionable updated terms and conditions regarding the
way in which your data is used (eg permitting third-party access). It can be
said that in such a scenario your consent isn’t exactly freely given, which
calls into question the meaning of consent in this context and whether it is
adequate. So far, the law does not seem
too ready for the internet of sexual offences or the issues brought to the fore
by sextech.
Conclusion
Overall, it was clear from the broad topics and nuances that
were drawn from the event, that there is a lot to think about as we continue to
innovate. Especially when it concerns the most intimate aspect of the human
experience, where uninhibited and private self-expression is vital. The law
must protect and the issues of consent and how far individuals’ data is
protected must be reformulated and the consequences seriously considered if
this is not adequately addressed. The message from the event was clear: in its
early stages, we should be thinking about the legal and ethical implications of
sextech and not be afraid to grapple with the sticky legal issues that may
arise.
You can access Pandora Blake’s slides and write-up of the
event here,
Neil Brown’s slides can be accessed here and the SCL YouTube
channel will soon be showing the full event.
Lorraine Chimbga currently works in Fintech programming
financial regulations into software, she was also recently named Best
International Future Lawyer by the International Association of Young Lawyers.
