Tag: privacy

Privacy in an Age Without Any

I join millions of Americans—the vast majority in fact—in feeling both dismay and anxiety at the near certainty that Roe v. Wade will be overturned. Abortion is not a subject for the editorial scope of this blog, but because the issue historically intersects the right of privacy—and because enforcement of the most draconian laws now on the books in several states implies substantial invasions of privacy—it is worth asking what happens next in a society that has largely sacrificed privacy to its technological toys?

In 1992, Ruth Bader Ginsburg, as part of the Madison Lecture series, discussed the assailable weaknesses in Roe, including her view that it was decided on the wrong question—the implied right of privacy rather than an affirmative right of non-discrimination. She further argued that Roe was so overbroad an opinion that it stymied judicial and political progress at the time, trending toward mitigating or ending sex-based discrimination. “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable,” Ginsburg wrote before contrasting Roe with contemporaneous decisions that she believed supported a more solid, if narrower, holding.

Although I personally agree with Justice Ginsburg that privacy was not the ideal foundation on which to base a woman’s right to seek an abortion, Roe’s unstable purchase on the privacy right comes in a moment when, for all practical purposes, privacy does not exist.* Regardless of the constitutional questions raised by Ginsburg et al., both the tenor and the letter of the state laws being written, or discussed, reek of religious fundamentalism and medieval encroachments into the most personal matters of people’s lives. And we must acknowledge the implications of enforcing those laws in the age of the cellphone and the social media profile.

What started with reconnecting with old friends via Facebook bloomed into so much personal data—even information shared unintentionally—that algorithms can not only predict outcomes, they can be used to effect outcomes. There is no need to reiterate the many world events thus far shaped by the manipulation of Facebook data alone. But suffice to say that if some well-financed interest wants to know the intimate details of a complete stranger’s sex life—or the same about a whole community (e.g., all the women at a particular college)—we have already shared more than enough information for an algorithm to produce fairly accurate results.

I don’t think it is farfetched to say that we are past the point when a state actor or political action group can theoretically purchase data which can then be used to predict when a woman intends to end a pregnancy, let alone know whether she already has. Add this to the kind of vigilantism being codified into state laws, and the harm beyond the abortion right itself flows into every vein of our civil liberties.

If Texas or Missouri, for instance, seeks to proscribe access to pharmaceutical abortion and/or travel out of state for a procedure, does this imply that women will need to abandon their right to maintain social media profiles or that they’ll need to use burner phones like drug dealers just so they can make their own medical decisions? The interpretive capacity of AI has already proven to be highly effective and dangerous. No woman needs to announce over Twitter that she’s on her way to the clinic. On the contrary, Google’s promise to “know you better than you know yourself” is only partly a PR statement because the boast correctly describes how powerful data interpretation at scale can be.

Outlandish fears? I doubt it. Not based on the evidence so far. Increased harassment of women—including crossover from cyberspace to real space—is already a sad reality of life plus social media. And there is no reason to believe that the intersection of misogyny and anti-abortion zeal will not be amplified and extended through the use of these technologies.

Whether Ginsburg et al. are correct that Roe galvanized the anti-abortion movement into a force that otherwise may not have materialized, it cannot be denied that the fervor of that opposition today is willing to deploy any tools available in the pursuit of its crusade. In a time when we should be criminalizing abuse of these technologies to spy on, harass, or surveil our neighbors, the state laws upheld by overturning Roe all point us in the opposite direction.

* I do not mean to imply that this Court would uphold abortion rights under any claim, but merely illustrate a distinction from the privacy foundation.

Image by: kentoh

The Ratajkowski Copyright Suit & Authorship in Photography

In my recent post about the McCloskey photograph, I said that courts tend to favor a photographer’s right to capture and distribute an image, even in situations involving fairly substantial privacy invasions in order to obtain photographs of limited news value. What I had in mind was the kind of paparazzi who aggressively pursue celebrities (especially women), and I was thinking specifically about a recent copyright dispute between model/actress Emily Ratajkowski and a photo taken by Robert O’Neil.

In a compelling article that Ratajkowski published in The Cut, she passionately advocates her right—and by extension anyone’s right—to maintain at least some control over her own likeness. She begins the piece by describing her feelings about the copyright lawsuit filed against her by O’Neil after she posted his photograph of her on Instagram without license. In the image, Ratajkowski is captured walking on the street. She holds a bouquet of flowers that completely obscures her face. Only her bare legs extending below the hemline of a light raincoat are visible as any part of her. Before reposting the photo to Instagram, she added text superimposed near the bottom of the frame that reads “mood forever.” She writes:

Since 2013, when I appeared in a viral music video, paparazzi have lurked outside my front door. I’ve become accustomed to large men appearing suddenly between cars or jumping out from behind corners, with glassy black holes where their faces should be. I posted the photograph of me using the bouquet as a shield on my Instagram because I liked what it said about my relationship with the paparazzi, and now I was being sued for it. I’ve become more familiar with seeing myself through the paparazzi’s lenses than I am with looking at myself in the mirror.

With regard to the behavioral aspects of these too-familiar stories, our sympathies naturally go to the celebrities who find themselves in Ratajkowski’s shoes. The experience of being stalked, having one’s privacy invaded, etc. by paparazzi are subjects of common law that deserve new consideration in a time when social platforms only increase the demand and the financial incentives for chronic surveillance of models and actresses in particular.

Ratajkowski’s broader message notwithstanding, her legal team’s response to O’Neil’s infringement claim is not well supported by either doctrine or case law. Her counsel alleges first, that the photograph lacks sufficient originality for copyright to attach; and second, that the model’s use was transformative and, therefore, a fair use as commentary. Yet, despite the inherent weakness of these two defenses, the language in the response on originality prompts a legal theory that her counsel does not appear to advance in this case:  the idea that Ratajkowski herself is at least a co-author of the photograph in question.

An Interesting Copyright Hypothesis

According to an article in The Fashion Law, Ratajkowski’s assertion of non-originality argues that “[O’Neil] did not have any say in how Ms. Ratajkowski was posed, did not create the background in which she was photographed, and did not control the light of the photograph. [He] did not select Ratajkowski’s “clothes, expression, pose, makeup, posture, position on the street, what she was holding, or who else was in the photo.”

To be clear, the image itself does not lack originality due to any of those factors. It is settled law that the “modicum of originality” standard protects a photographer who, in a split-second decision, captures an event that occurs in real life. Any Copyright Office examiner would (and presumably did) approve O’Neil’s photograph for registration without question. Nevertheless, Ratajkowski’s response is at least hypothetically intriguing for one reason:  that the most expressive element in the image is arguably the bouquet of flowers she holds in front of her face—a choice that was hers and not O’Neil’s.

It is a matter of doctrine that copyright protection requires human authorship. And authorship in photography, the first machine-made creative work, derives from two principles:  creative choices visible to the observer, as were dispositive in the seminal case Burrow-Giles Lithographic v. Sarony (1884); and the metaphysical notion of “personality of the artist,” articulated in another Supreme Court case called Bleistein v. Donaldson Lithographing Co. (1903).

The latter doctrine protects the photograph that results from an instantaneous decision to record elements that the photographer does not entirely control. The assumption that the “personality of the author” is present, even in a fraction of a second, is held to be sufficient grounds to meet the low threshold needed to find authorship in a photographic work. This principle supports the genres of street photography, photojournalism, nature and architectural photography, and the work of countless photographers whose images are considered both journalism and fine art.

Despite appearances to the contrary, this “personality of the author” principle is not to be confused with the erroneous belief that button-pushing alone is the act of photographic authorship, though the distinction being made is understandably so subtle as to appear almost moot. But with this in mind, imagine a scenario in which Emily Ratajkowski is aware that she is being photographed by a paparazzo, and so makes a creative decision to hold the bouquet of flowers in front of her face while conjuring a mental conception of the resulting image.

It is mental conception that copyright protects once it is fixed in a tangible medium. So, in this theoretical scenario, has Ratajkowski made a significant creative contribution that would give her a claim of co-authorship of the photograph? There is almost always collaboration between model and photographer; both are making choices, often in quick succession. But any question of joint authorship is usually nullified by contract. So, could Ratajkowski assert, in this instance, that she engaged in a creative collaboration with O’Neil that was both unwelcome and uncontracted—especially if her use of the bouquet as a prop could be considered a comment on the photograph itself?

This is a thought experiment. My aim is not to advocate Ratajkowski’s actual response to O’Neil’s suit, and certainly not to assert that the facts as I have just imagined them are present in her case. But in theory, it may not be necessary to disturb the case law in order to conceive of limited scenarios in which the subjects of photographs could make creative contributions sufficient to render the works jointly authored. Perhaps this is especially possible where the subject is a professional model and may be assumed to have an instinct (i.e. mental conception) for a pose or gesture that will produce an expression that becomes the “heart” of the work.

Ratajkowski’s article in The Cut asks a very human and very reasonable question:  why is her likeness not hers to control? And although copyright law is not the ideal framework for resolving that question, it is an association that reiterates Samuel Warren and Louis Brandeis’s 1890 law review paper that still informs our thinking on privacy rights. Not only did they look to copyright as a predicate for the idea that personal writings, words, deeds, etc. are a form of property deserving to be left alone, but they specifically cited the unwelcome photography of a stage actress as the kind of gossipy invasion that serves little social or cultural purpose. So, Emily Ratajkowski’s story is not a new one, though it seems to deserve some new thinking in the digital age.

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.”