Pervasive image capture and the First Amendment: memory, discourse, and the right to record.

• Author: Kreimer, Seth F.

INTRODUCTION I. THE EMERGING TECHNOLOGY OF PERVASIVE IMAGE CAPTURE II. THE OPPORTUNITIES OF IMAGE CAPTURE: THE DISCURSIVE ECOLOGY OF DIGITAL IMAGES A. Enrichment of Private Lives B. Public Discourse and Accountability 1. Premeditated Image Capture 2. Ambient Image Capture III. PERCEIVED DANGERS AND REGULATORY REACTIONS: DARK SIDES AND SHADOWS A. Proposed Public Privacy Torts B. Legislative Initiatives Directed at Image Capture C. Wiretapping Statutes, Open-Textured Prohibitions, and Official Fiat 1. Wiretapping Statutes 2. Catchall Statutes: Interference, Disobedience, and Disorderly Conduct 3. Fiat: The "Crime" of Photographic Defiance of Authority IV. THE PUZZLES OF FIRST AMENDMENT PROTECTION OF PERVASIVE IMAGE CAPTURE V. IMAGE CAPTURE AND THE DEFINITION OF "SPEECH" A. Images and Messages: "Speech," "Action," and "Inherently Expressive" Media B. "Speech" and the Question of Audience 1. Image Capture, Broadcast, and Technological Fortuity 2. Diaries, Internal Dialogue, and Memory 3. Preconditions and Elements of Communication VI. THE SCOPE OF PROTECTION FOR IMAGE CAPTURE A. "Generally Applicable Laws" and the Right to Gather Information B. Image Capture, Privacy, and First Amendment Limits 1. Retaliation and Catchall Statutes 2. Torts and Statutes Protecting Privacy and Dignity a. Privacy, Dignity, and Public Officials b. Privacy and Dignity in the Public Sphere C. Image Capture in Nonpublic Venues 1. Participant Recording and Single Party Consent 2. Consensual First-Party Image Capture and "Sexting". CONCLUSION INTRODUCTION

Scholars have recently begun to contemplate the prospect of "pervasive computing," with data-processing capacity and cues to digital data ubiquitously embedded in devices distributed throughout the human environment. (1) Pervasive computing still lies in the future, but in the last half-decade we have begun to experience the reality of pervasive image capture. (2)

As digital technology proliferates in camera phones, iPhones, and PDAs, almost any image we observe can be costlessly recorded, freely reproduced, and instantly transmitted worldwide. We live, relate, work, and decide in a world where image capture from life is routine, and captured images are part of ongoing discourse, both public and private. Capture of images has become an adjunct to memory and an accepted medium of connection and correspondence. Digitally captured memories, in turn, precipitate conflicts between governmental authority and free expression.

In the aftermath of the Iranian election during the summer of 2009, authorities sought to impede reporting on efforts to suppress opposition demonstrators. Yet cell phone videos disseminated over social-networking sites illuminated both official abuse and the scope of civil resistance. The most striking images, depicting the shooting death of Neda Agha-Soltan, were captured by nearby owners of cell phone cameras, e-mailed to a series of correspondents outside the country, posted on Facebook and YouTube, and then broadcast by conventional media the same day. (3) In the United States, amid arrests of inconvenient photographers at the 2009 G-20 Summit in Pittsburgh, images of efforts to suppress demonstrations documented on amateur digital video followed a similar route to public cognizance. (4)

At the boundary between public and private, conservative activists Hannah Giles and James O'Keefe impersonated a prostitute and a procurer seeking aid from local offices of the Association of Community Organization for Reform Now (ACORN) and surreptitiously captured images of the resulting interactions. The videos, initially posted on YouTube and a conservative website, rapidly spread to generate mainstream political controversy. (5) ACORN brought suit claiming that the image capture constituted an invasion of privacy and a violation of state wiretapping statutes. (6)

A similar dynamic unfolds in more personal contexts. The phenomenon of "sexting," in which owners of digital cameras capture their own nude or revealing images and convey them by text message or e-mail--with the accompanying danger of retransmission--has become increasingly prevalent with ubiquitous ownership of cell phone cameras. (7) Law enforcement authorities have taken alarm, and they have responded by invoking child pornography and obscenity statutes to threaten prosecution of underage sextets. (8)

These clashes between image capture and attempted suppression are typical, but hardly exhaustive. In the next decade, the proliferation of digital visual capacity will regularly require legal decisionmakers to come to grips with the status of pervasive image capture under the First Amendment. This Article commences the task.

I begin by parsing the technological trends that have set the stage for pervasive image capture as a social practice and proceed to sketch the emerging ecology of visual memory and discourse. I then canvass legal developments that threaten to shadow the promise of the new medium and discuss their proper analysis under the First Amendment. I argue against claims of earlier analysts that the process of recording images constitutes unprotected action. In today's world, personal image capture is part of a medium of expression entitled to First Amendment cognizance. I close with an initial account of the First Amendment protections of pervasive image capture.

1. THE EMERGING TECHNOLOGY OF PERVASIVE IMAGE CAPTURE

   Three developments converge to form the new reality of pervasive image capture: digital photographic capability merges synergistically with the ubiquity of the cell phone camera and the growth of online venues for image sharing.

   Digital cameras, introduced to the public in 1997, (9) have driven the marginal monetary cost of recording and saving images toward zero. Freed of the expense of film, developing, and printing, a digital camera owner can capture almost any number of images without effective monetary constraint. Once captured, digital images can be reproduced and disseminated like any other data; digital images flow frictionlessly from cables to flash drives, to e-mail and web pages. (10) Digital cameras began to outnumber film cameras in the United States in 2003, and today more than two-thirds of Americans own digital cam eras. (11) Similarly, video cameras, priced at $1500 in 1992, are available in digital versions today for less than a tenth of that cost, and digital image capture technology is increasingly available in a variety of inexpensive and ubiquitous personal digital devices. (12)

   Cell phone cameras, introduced in the United States in 2002, (13) have radically reduced the nonmonetary cost of image capture. In modern life, cell phones constantly accompany their users. They combine effortless and immediately accessible digital photographic capability with the capacity to transmit captured images instantaneously. (14) In modern America, cell phone ownership is on its way to becoming universal, and virtually every cell phone has digital image capacity. (15)

   Finally, during the last five years, distribution channels for digitial images have expanded exponentially. Social networking sites like Facebook, along with sites like Flickr, YouTube, and TwitPic, have combined with increasingly usable blogging technology to enable any holder of an image to make it instantly available to the world at large. (16)

2. THE OPPORTUNITIES OF IMAGE CAPTURE: THE DISCURSIVE ECOLOGY OF DIGITAL IMAGES

   Pervasive image capture opens both personal and political opportunities; the capture of digital images is a part of an emerging ecology of memory and discourse linking holders of cell phones, iPhones, PDAs, and computers. At the personal level, the diffusion of image-capture technologies provides channels to create life records, to connect with others, and to exercise creative capacities. In public discourse, pervasive image capture allows its users to hold public actors accountable and to participate effectively in public dialogue.

   1. Enrichment of Private Lives

      Users of camera phones typically deploy the devices to enrich their private lives. They augment their memories with captured images. They strengthen personal bonds by sharing images with others. They create works of visual authorship.

      Visual memory is notoriously thin and unreliable. (17) In response, camera-phone users ubiquitously capture and archive images to record their experiences for future reference. (18) Regular and costless image capture reinforces a sense that quotidian images are worthy of retention and potential recall. (19) And, in turn, the perceived worth of the images encourages their further capture.

      Modern life is increasingly atomized and centrifugal; pervasive image capture allows users to build and nurture interpersonal connections. Camera-phone users capture images to share their lives with friends and family. (20) Particular shared images convey information, perceptions, stories, or emotions; the stream of shared images establishes a sense of "co-presence" in correspondents' lives. (21)

      Pervasive image capture provides the raw material of visual aesthetic works. (22) The increasingly broad availability of costless image capture and storage enables every owner of a cell phone or PDA to practice the craft of the photographer or the filmmaker. With the emergence of Photoshop and its relatives, art previously confined to the darkroom and the studio is open to all members of the digerati; anyone with an iPhone can achieve visual expression that a decade ago was confined to cinematographers. (23) This efflorescence of photographic and videographic expression enriches the lives of practitioners at least as much as it enlivens those of viewers.

   2. Public Discourse and Accountability

      Pervasive image capture enhances public discourse. Premeditated efforts to record publicly relevant occurrences are bolstered by the continual accretion of images from spontaneous image capture. Images, unlike words, do not demand great...