Will privacy become a right?

What matters more to you, the right to privacy or the right to know?  Or is it even reasonable to believe these rights are in conflict with one another? While there is some dispute as to whether or not the 4th Amendment implies a constitutional right of privacy in the United States, it seems that we have generally believed that average citizens enjoy an expectation of privacy while public figures cede at least some of that right by choosing to become public figures.  Of course, even when it comes to public figures, it would be nice to see exposures of their folly constrained by a measure of decency and an assessment of social relevance; but human nature being what it is, sex scandal trumps insider trading every time.  Regardless, long gone are the days when we average Americans can remain passive spectators in the debate about how much privacy invasion is too much.

In this brief editorial on Slate, writer and Yale Law Fellow, Emily Bazelon cites a case in Germany where a court ruled in favor of a woman who wanted an ex-boyfriend to remove erotic photos and videos of her from his computer.  This comes a little less than a month after the European Court of Justice ruled that European citizens have a “right to be forgotten” online, giving individuals power to demand removal of personal data from companies like Google (which is to say Google).  Needless to say, Google was not happy about this ruling because asking that company to remove data is like asking Augustus Gloop to get his head out of Willy Wonka’s chocolate river.  True to form, the company resorted to the standard PR tactic of making its problems our problems, claiming that giving individuals this right to be forgotten chills free speech and threatens the public’s right to know about the very people (e.g. corrupt politicians) who deserve scrutiny.  These arguments are presumably directed at the American public, where we do in fact value free speech above principles of privacy, defamation, and slander.  Of course, the position could not be more hypocritical coming as it is from an elite crowd of billionaires whose dealings deserve much scrutiny and who are also exceptionally good at covering their own digital tracks.

To Emily Bazelon’s point, however, now that we’re all a little famous or could be made famous, or infamous, by way of communication as innocuous as a bullshit tweet to something more invasive and abusive like revenge porn, the question is whether or not we Americans will take a cue from Europe on the limits of speech when basic human decency is at stake.  For anyone who doesn’t know, revenge porn refers to libraries of erotic material captured or shared consensually between a couple, and after a breakup, the ex-boyfriend (so far, it’s the men) “shares” his collection of homemade erotic bits on a website that promotes this kind of material and, of course, monetizes it all with ad dollars.  Concerns over this type of use is one reason the woman in Germany likely sought to have the material removed from her ex’s computer, but even if he would not have done something as depraved as turn it into revenge porn, the case makes the point that once anything is recorded in the digital age, it’s a potential liability even if it isn’t broadly shared via social media.  We Americans may be used to a basic right of privacy; but it isn’t explicitly protected by law and so appears to be something we’re going to have to insist upon if we really want it.

In light of my recent post about automatic copyrights for non-professionals, it’s worth noting that the German court did not consider the ex-boyfriend’s copyright interests in the photos and videos to be more important than the rights of the woman depicted in these images.  The court made the determination that these media were not professional photos that were in any way related to the ex-boyfriend’s business and that no such business relationship existed with regard to the recording of the images.  As such, it seems like common sense and common decency to find in favor of the woman, although an American court might have ruled the other way. In that post, I made the case that Americans’ interest in automatic copyrights remains a functional hedge against private or corporate misuse of amateur media like personal photographs, and I stand by that position.  For instance, in a case in which the subject is also the photographer, copyright can and has been used (e.g. DMCA) to take down revenge porn. What’s interesting about the German ruling, though, is that the court ordered the media removed from the boyfriend’s possession despite the fact he had not done anything with the assets in the form of an inappropriate distribution.  The rationale suggests the plaintiff in this case has the right to remove even the potential of misuse by her ex rather than trust indefinitely that he won’t  have too many Mojitos one night and decide she broke his heart and deserves to be punished for it.

So, for what it’s worth, here’s one way in which copyright might be due for some nuanced reform in the digital age — that it should be bound by the rights of individuals who grant use of their likenesses in one context but not in all contexts — a right to be forgotten, if you will.  But you’re not going to hear the self-proclaimed copyright reformers from Silicon Valley make this argument.

© 2014, David Newhoff. All rights reserved.

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  • David–
    Demanding that copyright reformers take a position on privacy is like insisting that proponents of clean energy also must advocate for saving whales and for gay rights. Those may all be perfectly good things, and many people may hold positions on all of them, but they’re nothing to do with one another; they’re entirely orthogonal.

    Further, this has no place in copyright reform. If it’s good, it’s good on its own merits, whatever copyright law we happen to have. It also needs to be able to apply to non-copyrighted works, which might not be the case if it is crammed into copyright reform. My financial history is not copyrightable (it’s facts) and even if it were, a report about it would not be copyrighted by me, unless I wrote the report, which obviously wouldn’t happen. Merely living out the facts isn’t enough. A privacy right limited to copyrighted works would not be nearly so useful or as justifiable as one which had broader application.

    And you remain wrong about copyright being a stand-in for privacy. That only works in the instance where there is a copyrighted work and the victim of the invasion of privacy is also the author. In many (quite possibly most) cases this will not be true. While you might feel that half a loaf is better than none, it may be worse if it reduces pressure to address privacy squarely, or if it distorts our approach. And certainly this isn’t the intent. Copyright is intended to increase the number of published works in the public domain. Using it for the purposes of privacy is simply perverse.

    As for privacy itself, while it’s important, and we could probably use better protection of it in the US, there are certainly two sides to the coin. Privacy is good in some contexts, but is harmful in others. It’s very difficult to maintain (as they say, three people can keep a secret only if two of them are dead), and in practice cannot really be retracted. To attempt to do so really is to attempt to unring the bell. We can’t allow privacy to be abused into a form of censorship. We have to anticipate that waivers of privacy, and particularly overbroad waivers, will be thrust upon us in every commercial transaction, and we’ll have to deal with that. We’ll have to address matters of factual accuracy, and cases where privacy interests are outweighed by other concerns.

    The EU is moving too fast here, I think, in no small part because they’re just being utterly ineffective due to jurisdictional issues. While privacy is an important thing, and we should’ve been working on this since long ago (I remember reading ‘Database Nation’ by Simson Garfinkel years ago, and he was critical of how long we had ignored the problem then), we can’t just rush into this. It’s going to take a lot of deliberate and careful thought and work.

    And it’s entirely possible that a reasonable outcome is not achievable. In which case we must consider next best alternatives, such as dismantling privacy where it is applied in negative ways, and just learning as a society to be more tolerant of who people really are. Sounds terrifying, so let’s hope it doesn’t come to that!

    • David Newhoff


      “Demanding that copyright reformers take a position on privacy is like insisting that proponents of clean energy also must advocate for saving whales and for gay rights.”

      Aside from the fact that I’m not demanding anything, surely you’re aware that copyright reformers do take a stance on privacy, although I happen to think they’re generally wrong on both issues. Most prominently, I’m thinking of the Electronic Fearmongering Foundation, which barely stops short of conflating government surveillance with the Hollywood copyright cartel and occasionally overruns that line just a bit.

      Privacy has never really been the issue it is until now. With regard to the public’s right to know about key individuals, we have the press for that, and NOTHING is going to convince me that citizen journalism has shed more light on wrongdoing, added more context, or fostered greater dialogue on important issues. It would be delusional to argue the contrary because what we have now is mostly chaos. But the point of the post is that until now, we average Joes living our relatively quiet lives haven’t really had to think about a right of privacy to this extent, and maybe it’s time we should.

  • Working from first principles, it is much easier to demonstrate a right to privacy than a “right to know”. A “right to know”, much like a “right to share”, only arises provided there is something to know. Privacy, on the other hand, is something that is the ground state of human existence – your private matters cannot be made public, unless there is a public.

    Using my favourite metaphor of the desert island: when stranded on one, all your matters are private by default – because there are no other people around. At the same time, and for the same reason, you cannot know what is going on with other people. The thing that allows one, but denies the other, is not a matter of social contrivance (no society), but objective circumstance.

    The “right to know” is thus hardly a matter of fundamental rights, but rather of social contract. We believe that we should be informed of what our elected officials (say) get up to, but unless someone undertakes to inform us of it, we won’t be. The same rationale cannot be used to justify knowing everything about everybody, for the simple reason that we cannot demonstrate a valid – and compelling to a dispassionate observer – interest in knowing things that will not affect us in any way.

    The ground rule of social interest v. private rights has thus far, rightly, tended to be that society’s interest trumps private right if, and only if, social benefit far outweighs personal cost. The alternative is oppression of individuals by whoever has the power to dictate “social interest” (we have more than a few historical examples). Based on record to date, I believe there’s going to be a strong rift between Europe and America in this case.

  • [we have generally believed that average citizens enjoy an expectation of privacy while public figures cede at least some of that right by choosing to become public figures.]

    Mike Godwin made this point on a wikipedia mailing list:

    [When did this person —
    volunteer to take a role in public life?]

    similarly when did the family of a murder victim, or those of the perpetrator volunteer? When did a three yo volunteer to have it recorded that he could dress and feed himself, when did a 6 yo volunteer to have it recorded that he’d been taken out of mainstream education?

  • This today from the UK
    [Certain past minor cautions and convictions should remain part of a protected private life and not have to be disclosed in criminal record checks, the Supreme Court has ruled.

    Judges said any requirement to do so would be incompatible with human rights legislation.

    The Supreme Court decision upholds a ruling by the Court of Appeal.

    if people can bypass the CRB checks and do it via Google’s scanning of old newspaper reports then the safeguards are nullified.

    They have been inserting little memes in everybody’s mind. So Google’s shills can shriek there whenever they’re inclined

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