Category: Digital Culture

Time for a Fresh Conversation About Privacy and Publicity

“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the right ‘to be let alone.’ Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”

Those words could be describing the pervasive—and invasive—digital age, but they’re not. They are in fact excerpted from a paper published in the Harvard Law Review in 1890, written by Samuel Warren and Louis Brandeis, nearly 30 years before the Brandeis was appointed to the Supreme Court. Considered a seminal work articulating a right to privacy in the U.S., Warren and Brandeis examine the subject by first theorizing the right as implicated by the fact that unpublished works like personal letters enjoyed a perpetual common-law copyright.

In essence, if the private thoughts, images, or other embodied works are published against the will of the author, this amounts to coerced speech in violation of the First Amendment; and Warren and Brandeis begin with a premise that this principle is coextensive with a right of privacy. They state:

“The principle which protects personal writings and any other productions of the intellect of or the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relation, domestic or otherwise.”

And in a distinctly victorian observation that seems to anticipate the most exploitative, nip-slip paparazzi out there, they write:

“If you may not reproduce a woman’s face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.”

Although the contemporary right of publicity, shaped in the 1950s, owes much to the Warren/Brandeis paper, the pair might be disappointed to see that their sense of “depraved imagination” is amply protected by the right of the free press today. The newsworthiness of public persons is interpreted broadly enough in the U.S. that if Lupita Nyong’o is photographed choosing a brand of toothpaste, the public that would be interested in such minutia has a “right to know.” Ditto anything that might be personally embarrassing, from tripping on the sidewalk, to an argument with a friend, to a wardrobe malfunction. It’s all news. And it has to be said that plenty of serendipitous, photographic works have earned distinction as art (see career of Harry Benson).

On the other hand, if Johnson & Johnson were to seize the opportunity to create an unlicensed print ad with the hypothetical toothpaste photo, this would violate Ms. Nyong’o’s right of publicity, which generally draws the line at commercial exploitation of a person’s name or likeness, and this can include promoting an agenda by a non-profit organization. Again, the First Amendment holds sway. Capture a public person doing almost anything and it’s likely to be protected by free press; but use that public person’s likeness to endorse a product or message, and it’s a First Amendment infringement as coerced speech.

Although Warren and Brandeis look to the copyright protection of unpublished works as a starting point, they further assert that privacy is unavoidably intertwined with the rationale for the protection of intimate “thoughts, emotions, and sensations.” In fact, about a hundred years later, in J.D. Salinger v. Random House (1987), when the Second Circuit held that a biography on Salinger had relied too heavily on the author’s unpublished letters, the court also cited deference to his right of privacy.  And I think we all know how Salinger felt about his privacy.

Your Face Here (whether you like it or not)

Now, we enter a new technological paradigm—privacy and publicity invasions in which a subject (or victim) need not even accidentally participate. As my colleague Sarah Howes, counsel at SAG/AFTRA, describes in her blog on Medium, “There are technologies out there that can insert female actors’ faces into nonconsensual fake porn, and manipulate video and radio content to literally put words in the mouths of anyone, including actors, news broadcasters, and politicians.”

For performers like those represented by SAG/AFTRA, the effectiveness of this technology has led to an effort by these professionals to extend the publicity right beyond their own lifetimes. It was widely reported as technologically cool in 2016 when the late Peter Cushing was resurrected and seamlessly cast in the film Rogue One: A Star Wars Story, but the capacity to accomplish this also suggests that perhaps a deceased performer’s heirs or trusted assigns should have the right to decide under what conditions the actor or actress returns to the screen.

As Howes points out, people can cause a lot of trouble with very dire consequences as these applications become easier to use. Casting movie stars in pornographic films without their consent is one example; but the implications for a society already draining truth like a Sweeny Todd bloodbath are quite staggering. The axiom was  inverted years ago: seeing is no longer believing. But now malicious parties—be they Russian agents with an agenda or internet trolls amusing themselves—will soon add video “evidence” to their arsenal of weaponized bullshit.

When I first looked at the board site 4Chan several years ago, there was one channel where it seemed fairly common for members to upload innocuous snapshots of girls with an open request to the group to make them naked (ah, crowd-sourcing). A few posts down the thread, the request would be fulfilled by someone with Photoshop skills. And while it’s easy to write that off as the pastime of basement-dwelling losers, it’s worth remembering that, as Chris Ruen pointed out in his section about the anti-SOPA campaign in his book Freeloading, the line between basement-dwelling losers and sober internet activists is not exactly a wall of separation.

In fact, more acutely and more recently, The Washington Post reported last week that the chat board 8Chan (essentially 4Chan 2.0) was a major source—if not the source—of false narratives about the Stoneman Douglas shooting, including rumors that the student activists were hired shills of the DNC et al. “The success of this effort would soon illustrate how lies that thrive on raucous online platforms increasingly shape public understanding of major events. As much of the nation mourned, the story concocted on anonymous chat rooms soon burst onto YouTube, Twitter and Facebook, where the theories surged in popularity,” write Craig Timberg and Drew Harwell for the Post.

So apropos Sarah Howes’s observations, we will soon see bogus video “evidence” in the narrative of otherwise serious policy debate, and these assets will be as easily produced by some basement-dwelling loser as the aforementioned fake nudes. If we are not already too far down this rabbit hole, we are certainly still digging in the wrong direction. And among the remedies to protect both the dignity of individuals and the public’s right to know the truth, it may be time to reconsider both privacy and publicity protections in context to technologies that are as new to us as “instantaneous photographs” were to Warren and Brandeis at the turn of the century.

In conclusion, the two attorneys rather remarkably predicted the negative effects of democratizing and mass-producing information without regard to value or editorial scrutiny. I mean they could hardly have imagined Boing Boing when they wrote the following:

“Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in the lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things.”

Time to Stop Defending the Internet As-Is

With the passing of John Perry Barlow last week, a number of articles and social media comments by internet activists offered variations on the theme that we have Barlow to thank for the internet as we know it. In general, they mean the internet that has thus far been allowed to function as a self-governing industry. While it is certainly proper that organizations mourn the loss of a friend and colleague—and in the case of the EFF, a co-founder—the internet story of the present is one running counter to the utopianism of the 1990s shaped by people like Barlow. And it’s no longer just us “Luddites” saying so.

Despite the high-minded idealism of twenty years ago—predicting that a cyberspace independent of the laws of nations would somehow reveal our latent morality, fairness, and intelligence—the banal consequence is that laissez-faire cyber policy mostly enabled platform designers to convert our crudest instincts into advertising dollars. This finally became apparent to many Americans last year with the revelation that Russian agents have been using Facebook’s ad system to intentionally exacerbate political discord in the United States.

That story was followed by some of Silicon Valley’s most prominent figures coming forward to acknowledge that the apps and systems they helped build are indeed unhealthy—politically, socially, and physiologically. In short, the internet we have is not the one we should hope to keep. And even the owners of the major platforms are now coming to grips with the fact that, despite all previous slogans to the contrary, they are not making the world a better place. In this light, it seems that organizations like EFF et al, who devote considerable effort to defend a state of zero accountability for service providers, are planting their flags on the wrong side of history.

Most recently, a team of tech industry professionals established the Center for Humane Technology. Led by former Google Design Ethicist Tristan Harris and featuring entrepreneur and early Facebook advisor Roger McNamee, the organization’s mission reads like a response to a core problem identified by Jaron Lanier as early as 2010—that web technology was not designed to serve humans so much as humans have been reprogrammed to serve technology.

The new Center emphasizes specific ways in which social media platforms have been purposely designed to exploit basic, psychological vulnerabilities in order to make the experiences addictive and retain round-the-clock user attention. They identify both specific design aspects (i.e. icons, colors, etc.) and business decisions that produce negative effects ranging from personal depression to a political climate steeped in ignorance and outrage. And of course nobody really knows the effects the devices and apps have on the developing brains of young children.

In press interviews, Harris states that many of his friends and colleagues at Google and Facebook are aware of the problems he is now publicizing; but he also notes that the people at these companies are trapped between personal values, yearning to act ethically; and company business models, which cannot easily be abandoned. This is why a key target audience of the Center’s outreach comprises the current and future employees of the tech industry, recognizing that talented designers, engineers, and programmers are in a position to exert pressure on employers to build products that actually serve society.

The fallout from the Russian hack, generally referred to as the “tech backlash,” seems to have produced three main responses. The quietest was a fleeting denial that the backlash was even happening or that Big Tech deserved the criticism. A slightly more prominent theme emerged suggesting that Silicon Valley had sold out its Barlowian ideals for profit, stressing a back-to-basics agenda that fails to acknowledge the flaws in those ideals at their foundation. And the third response, the one now dominating mainstream reporting, features leading industry players unequivocally admitting that they designed systems which produce some very negative effects.

While the Center for Humane Technology represents a step in the right direction, two ideas occur to me. The first is that more thoughtful technology design alone cannot do our work for us. For example, if our social or political views are too easily manipulated or reinforced by memes or unreliable information sources, Facebook cannot be counted on to redesign its platform to teach people how to be critical thinkers. So, while it is good to know that tech leaders are willing to admit that Facebook appeals to our lizard brains, I suspect they can only do so much to help us transcend our lizard natures. That’s on us.

The other thought is that organizations like this Center might want to reach out to the artists, musicians, authors, etc. who were among the first to identify and discuss the negative effects of the internet. The 20-year-old mud fight over copyright infringement has been cynically mischaracterized as a battle exclusively about money. But this distillation ignores, for instance, the intersection between media exploitation and media gluttony. While it is absolutely necessary to better understand—and even want to change—the mechanisms by which social media platforms foster addiction, it is also worth acknowledging the extent to which those mechanisms still rely on unlicensed exploitation of authors, artists, journalists, musicians, photographers, etc. to retain user attention.

Meanwhile, the organizations still clinging to the maximalist view that society is best served when Google, Facebook, et al are absolved from responsibility and liability will find that message increasingly hard to sell. And it’s about time.

In a must-read article by Roger McNamee, one detail I find particularly striking is how recent the “tech backlash” really is—how much evidence McNamee himself, as a trusted advisor, had to present to Facebook leadership before they finally stopped hiding behind the old saw that they’re not a publisher and cannot be held responsible for third-party content. That mantra is the colloquial version of what the policy folks know as Section 230 of the Communications Decency Act and Section 512 of the Digital Millennium Copyright Act—twin liability shields that are the legislative foundation for many of the problems now being discussed. In fact, I’ll conclude by quoting McNamee, who sums it up perfectly as follows:

“Thanks to the U.S. government’s laissez-faire approach to regulation, the internet platforms were able to pursue business strategies that would not have been allowed in prior decades. No one stopped them from using free products to centralize the internet and then replace its core functions. No one stopped them from siphoning off the profits of content creators. No one stopped them from gathering data on every aspect of every user’s internet life. No one stopped them from amassing market share not seen since the days of Standard Oil. No one stopped them from running massive social and psychological experiments on their users. No one demanded that they police their platforms. It has been a sweet deal.”

Wait, Boing Boing Is Not Clickbait?

So, maybe you heard, or didn’t—or you don’t really care—that Playboy is suing Boing Boing (parent company Happy Mutants, LLC) for contributory copyright infringement. There are a couple of serious points to make about this case, but I want to address the funny part first because it actually informs the not funny parts.

The funny began when I read TorrentFreak’s* article highlighting the fact that Playboy’s complaint calls Boing Boing a clickbait site.  It just so happens that I read the TF post after I read EFF’s motion to dismiss on behalf of Boing Boing, referring to the site’s enterprise as journalism. And that’s pretty funny because the example below is a typical “news article” on Boing Boing. This one happens to be about Andrew McCabe stepping down as Deputy Director of the FBI:

As you see, the “journalist” in this example has typed 69 words conveying the barest information he learned from a real news source; he’s shared a quote from NBC only slightly shorter than his own content; and he’s used a photo from the Reuters News Agency that’s bigger than all the text. In fact, by area, the “article” occupies roughly the same page space as the banner ads while providing the reader with a fraction of the information he could get from a news site—adding neither commentary nor insight nor color to the most rudimentary facts. And for extra funny, Boing Boing asserts a Creative Commons license even though one would be hard-pressed to find any protectable elements in an example like the above—the author having written five sentences so common in vocabulary and structure that I doubt even the site’s limited claim of protection under Creative Commons would hold up.

A sample like this is not journalism by any reasonable definition of the term so much as it is a time-wasting diversion for a reader who might actually want substantive news or commentary about McCabe’s imminent resignation. I know, one man’s meat and all that, but it seems fair to assert that this Boing Boing post, and many just like it, exist solely for the purpose of grabbing traffic to generate ad impressions while providing no distinctive value to the visitor.

But if Boing Boing and friends bristle at the term clickbait to describe this business model, perhaps they’d prefer Wasteful Aggregators of News and Knowledge. Y’know, WANKs. For practical purposes, let’s define a WANK as any site that functions as a tollbooth—a needless step between, for instance, a social media feed and a robust source of content like a news site. Rather than operate as creators of original content, WANKs harvest Pavlovian responses to headlines in order to funnel traffic through their tollbooths, generating revenue in the form of ad impressions. Sorta, like…clickbait.

A Quick Note on Contributory Infringement

Simply put, liability for contributory infringement exists when a party knowingly induces or encourages infringement, with or without prospective financial gain. In this particular case, I would assert that profiting from traffic is the only reason for the existence of WANKs like Boing Boing; but even if we were to broaden the meaning of journalism to encompass these sites, this does not change the legal analysis because the most serious journalists in the world can still infringe a copyright or be liable for contributory infringement—even while producing far more original work than a typical Boing Boing post.

Playboy Entertainment v. Happy Mutants

So what happened with Playboy was that somebody uploaded every playmate centerfold dating back to April 1960 (477 images) to the site Imgur. And upon discovery of this trove of unlicensed photos, Boing Boing’s intrepid news team produced one of its Pulitzer-melting articles with a headline cleverly titled “Every Playboy Playmate Centerfold Ever.” At issue is the fact that the article contained two links—one to the Imgur pages, the other to a YouTube video, made by someone who’d arranged the photos into a slide show. But lest you think this was just a cheap opportunity to leverage a third-party infringement just to drive traffic, note that the reporter did stay up late to write the following:

“Some wonderful person uploaded scans of every Playboy
Playmate centerfold to imgur. It’s an amazing collection,
whether your interests are prurient or lofty. Kind of amazing to
see how our standards of hotness, and the art of commercial
erotic photography, have changed over time.”

The EFF calls the publication of these words “transformative,” asserting that even if there were grounds for contributory infringement, which they insist are not present, this perceptive insight, with its melodic repetition of the word amazing, serves as the cornerstone of a fair use defense under the first factor. I know it seems like I’m still on the funny part, but this is the serious legal stuff and is central to Boing Boing’s defense that all they did was link to infringing content while commenting on it “as journalists.”

Now, my opinion of Boing Boing’s value doesn’t technically matter. And the opinion of a court should not matter either. We certainly do not want the courts or any other branch of government deciding what is and is not journalism (especially these days). And it is also true that the prospect of incurring liability simply by linking to content can imply potential hazards, though certainly not the existential threat to the internet that EFF and its colleagues seem to proclaim with relentless consistency.

At the same time, it is not reasonable for WANKs, or any other platform, to avoid liability for intentionally exploiting third-party infringement merely by means of attaching a glib comment and calling it “news reporting” protected by fair use. By EFF’s standards, I could post unlicensed photos on this blog with captions that say little more than, “This one’s my favorite!” and call it “transformative.” And that just ain’t right.

Again, even if we were generous enough to consider Boing Boing’s 44-word “standards of hotness” post a form of journalism, it still should not pass as “transformative” under the fair use test because the post does not actually use the original work to create a new expression by adding something new. Technically, the post could stand alone without the links. It would still be lame, but it wouldn’t be infringing. As it is, the central communication of the post is, “Dude, you should look at these photos, and here are the links.” Which sounds kinda contributory.

Of course, the real key to Boing Boing’s liability has less to do with the text in the post and more to do with the headline. When the unambiguous words Every Playboy Playmate Centerfold Ever appeared in social media feeds, the goal was to trigger the aforementioned Pavlovian response whereby users click the link expecting to see exactly what the headline promises. The brief interlude when the user might read the diminutive post does not serve to shield the fact that, as indicated by the headline, Boing Boing advertised, and then provided access to, infringing content for the sole purpose of drawing traffic to its pages.

This conduct should be more than sufficient to allege contributory infringement and allow this case to proceed. Meanwhile, I actually agree with Boing Boing’s defenders that this case gets to the heart of the internet—namely the heart of what sucks about the internet, which is populated by too many opportunistic platforms that do very little other than manipulate users and exploit work somebody else has produced. If WANKs like Boing Boing cannot operate without blanket immunity from responsibility—a dysfunctional policy that real journalists have never enjoyed—then the enterprise should fail. What society would lose in that bargain is impossible to imagine.

*POST CORRECTED:  As first published, I called the TF post “defensive,” a reading into the article based on its headline, the editorial leanings of that site, and the anti-copyright views expressed by many of its readers’ comments.  Upon hearing from TF and further review, it’s fair to say that Andy’s post is much more neutral than I first described.