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in the U.S., Warren and Brandeis examine the subject by first theorizing the right as implicated by the fact that unpublished works like personal letters enjoyed a perpetual common-law copyright.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.”

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