"We, the Paparazzi": Developing a Privacy Paradigm for Digital Video

• Author: Jacqueline D. Lipton
• Position: Professor of Law, Associate Dean for Faculty Development and Research
• Pages: 04

Professor of Law, Associate Dean for Faculty Development and Research; Co-Director, Center for Law, Technology and the Arts; Associate Director, Frederick K. Cox International Law Center, Case Western Reserve University School of Law, e-mail: Jacqueline.Lipton@case. edu, fax: (216) 368-2086. For helpful comments on earlier drafts of this Article, the author would like to thank Professor Andrea Matwyshyn and participants at a panel on user-generated content and privacy, "Computers, Freedom and Privacy '08" at Yale University on May 21, 2008, as well as participants at the Eighth Annual Intellectual Property Scholars' Conference at Stanford Law School on August 7-8, 2008; participants in a Faculty Colloquium at Villanova Law School on October 10, 2008; participants at a Faculty Workshop at the University of Florida Levin College of Law on October 15, 2008; and participants at the 2nd Annual Privacy Law Scholars' Conference in Berkeley on June 4-5, 2009. Additionally, thanks are due to the following people for commenting on earlier drafts of this Article: Professor A. Michael Froomkin, Professor Mark Lemley, Professor Patricia Sanchez Abril, Professor Ruth Gordon, Professor Doris DelTosto Brogan, Professor John Gotanda, Professor Marc Blitz, Professor Hannibal Travis, Professor Diane Zimmerman, Professor Daniel Sokol, Professor Lyrissa Lidsky, Professor Elizabeth Rowe, Professor Jon Mills, Professor Michelle Jacobs, Professor Juan Perea, Professor Charlene Luke, Professor Neil Richards, Professor Daniel Solove, Mr. Lee Tien, Professor Orin Kerr, Professor Ian Kerr, Professor Paul Ohm, Professor Raymond Ku, Professor Danielle Citron, Professor Ann Bartow, Professor Peter Swire, Professor Eric Goldman, Professor B. Jessie Hill, Mr. Ryan Calo, Professor Marcel Leonardi, and Professor Christopher Slobogin. Thanks are also due to Josephina Manifold for her excellent research assistance. All mistakes and omissions are, of course, my own.

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I Introduction

In mymind and in my car, we can't rewind we've gone too far. Pictures came and broke your heart, put the blame on VTR

-The Buggles, Video Killed the Radio Star¹

Are we all paparazzi now? Consider the story of "dog-poop girl." Once upon a time, a passenger's dog defecated on the floor of a subway car in South Korea. While unremarkable in itself, this story quickly became an Internet sensation when the passenger refused to clean the mess.² Someone on the train, an anonymous face in the crowd, took photos of the woman with a cell-phone camera. These images were promptly posted on a popular Korean blog. The aim was to shame the unrepentant and socially irresponsible dog owner.³ Ultimately, the humiliation attached to this incident resulted in a "firestorm of criticism" that caused her to quit her job.⁴ This story is one of a number of recent episodes illustrating how a person's privacy can be destroyed at the push of a button, using the simplest and most ubiquitous combination of digital technologies-the cell-phone camera and the Internet.⁵ While some may say that dog-poop girl received her just deserts for being a socially irresponsible dog owner, others may well feel that the punishment far outweighed the crime.

Then there's the story of "Star Wars kid"-a Canadian teenager who filmed himself playing with a golf-ball retriever as if it were a light-saber from the Star Wars movies. Embarrassing? Yes. Socially irresponsible? No. His video was posted to the Internet without his authorization. A variety of amateur video enthusiasts then adopted it on services such as YouTube.⁶They created many popular, but extremely humiliating, mash-up videos⁷ of Page 922 the youth.⁸ The young man ended up dropping out of school. He also required psychiatric care, including a period of institutionalization at a children's psychiatric facility.⁹ Even more worrying perhaps was the fate of "Bus uncle" in Hong Kong. This man was physically assaulted in a targeted attack at the restaurant where he worked. The attack ensued after an online posting of a video depicting him speaking loudly on his cellphone on a bus and ignoring requests of other passengers to be quiet.¹⁰

We are witnessing the emergence of a worrying new trend: peers¹¹intruding into each other's privacy and anonymity with video and multimedia files in ways that harm the subjects of these digital files.¹² There is a mismatch between these harms and the legal remedies available, notably those arising out of privacy and defamation law.¹³ Even new laws such as the Page 923 proposed Camera Phone Predator Alert Bill¹⁴ would only notify a person that a picture of her may have been taken. It would do nothing to stem the tide of global online dissemination of a damaging image of that person.¹⁵While it is now trite to say that the Internet poses significant risks to privacy, these risks have previously manifested themselves in the collection, use, and dissemination of text-based personal records by governments,¹⁶ businesses,¹⁷health-care providers,¹⁸ Internet intermediaries,¹⁹ and prospective employers.²⁰ Today, we need to add concerns about unauthorized uses, often in video formats,²¹ of our personal information by our peers over Page 924 networks such as MySpace,²² Facebook,²³ Flickr,²⁴ and YouTube.²⁵ An image of an individual in an embarrassing situation might well affect her chances of employment,²⁶ education, or health insurance.²⁷ As the examples of Star Wars kid, dog-poop girl, and Bus Uncle demonstrate, the consequences of such unauthorized dissemination can be devastating.

Video images are qualitatively different from text-based data in a variety of ways.²⁸ Nevertheless, most privacy literature fails to acknowledge that fact. Page 925 This Article focuses on how to protect video privacy in an age of online social networking.²⁹ This issue must be considered urgently by law- and policy-makers to avoid the entrenchment of privacy-destroying norms when online social-networking technologies ("OSNs") reach a critical-mass point.³⁰ This Article argues that legal regulation alone is unlikely to solve society's video-privacy problems.³¹ It advocates a multimodal approach³² that combines six regulatory modalities: legal rules, social norms,³³ system architecture,³⁴ market forces,³⁵ public education, and private nonprofit institutions.³⁶ Part II identifies gaps in privacy law with respect to online-video privacy. It notes that current tort laws are ill-suited to the digital age and are globally disharmonized. Part III identifies practical and theoretical justifications for, and possible approaches to, regulating online-video privacy. Part IV sets out a framework for a new multimodal regulatory approach based on the six modalities identified above. Part V concludes with a discussion of future directions for online-video-privacy regulation. Page 926

II Online-Video Privacy: Gaps in the Existing Legal Framework

Netw echnologies are radically advancing our freedoms, but they are also enabling unparalleled invasions of privacy.

-Electronic Frontier Foundation³⁷

Advances in video technologies-with respect to both still and moving images-have historically facilitated dramatic social transformations. In the late nineteenth century, when photography first became relatively cheap and portable,³⁸ commentators expressed concerns about the development of the "snap camera" by Kodak.³⁹ This camera, for the first time, enabled private individuals and members of the press to take and distribute candid photographs in a way never before possible.⁴⁰ It also spurred Warren and Brandeis to publish their seminal article on privacy.⁴¹ Their article shaped the development of American privacy law for more than a century.⁴² The fact that the article derived from the authors' concerns about video privacy suggests something important about video that differentiates it from other forms of information.⁴³ Page 927

Today's online-video technologies create new threats to privacy. The ready accessibility of cell-phone cameras and small, easily concealed video cameras,⁴⁴ coupled with the Internet, makes the dissemination of video- both still and multimedia-practically instantaneous and potentially global in scope. The concerns about losing control over personal information online are much greater today than they were, even in the gossip rags of the nineteenth century. To be published in a newspaper, albeit a scandal sheet, pictures had to make their way into the hands of an entity that produced such a publication. Most such publications, at least in theory, are also generally subject to some ethical codes of conduct.⁴⁵ Today, anyone can be a publisher. Photographers do not even need a stand-alone camera to capture a candid image-most people can resort to their inexpensive and ever-present cellphones.⁴⁶ The fact that individuals can instantly snap a photograph without even thinking to carry a...