There is a relationship between the growth of media technologies and our diminishing right to privacy. Cell-phones, like hidden surveillance cameras, are everywhere, recording, extending the sphere of public awareness. In large, this phenomenon is harmless, people enjoy making videos and people enjoy watching them. Yet, this phenomenon also has a darker side. In the modern world, we no longer have a reasonable expectation of privacy.

The right to privacy stems from our belief that we should have the liberty to live our own lives, free from the threat of harm or interference. It is the belief that each individual has the freedom to act and speak, as they choose – so long as it does not infringe upon the rights of others – without being potentially watched, judged, manipulated, threatened, or exploited. Or more simply put, it is the belief that what you do (with some important exceptions), really isn’t anyone else’s business.

Under U.S. law, we have a right to “a reasonable expectation of privacy.” But, do we? The moment you walk out of your front door, you are fair game. Someone has the right to take, use, and distribute photographs or images of you, walking down the street, in the grocery store, in the coffee shop. If you have you ever made a statement that could be taken out of context, if you have ever said something stupid at a party, if you have ever been intimate late at night on the beach, it is fair game. Anything you say or do is food for public consumption. Your intimate moments on display for the pleasure of others.

Imagine, for example, if you went to coffee with college friends and had a “philosophical discussion,” in which you make some comments that could be taken out of context. It turns out that your comments were recorded, without your knowledge or permission, by a teenager who posted it on YouTube for fun. A million hits later, you have been publicly humiliated, your reputation is soiled, and you are worried about your future.

Every time you have a job interview, people are going to ask, “We googled you and we were very disturbed by some comments you made back in 2007. And we don’t know if you are going to be a good fit for this company.” And thus, I ask a very simple question, “Is this the kind of society we want to live in?”

In the future, we should expect to find a great deal of random footage of your life, floating around on the internet. Let’s do a quick search and see what footage we have on you?

Now, to be perfectly honest, there is not one of us who is not guilty of eavesdropping or taking a photograph or video clip of someone without permission. Yet, posting it on the internet, takes it to a different level. Even if the posting is well-intentioned, it may be personally embarrassing or result in harm or injury. There are a variety of reason why people post things on the internet, but whatever the motivation, it is a violation of privacy and common decency, regardless of the nature of the content; and it should be prohibited.

When someone posts material on YouTube, without permission, it is often exploitive. Under no circumstance should someone have the right to record your image, without consent, and distribute it for profit.

And companies, such as YouTube, a multi-billion dollar media company, are far from innocent; this is how they make a large percentage of their money. In other words, they engage in economic exploitation. Someone runs up, kicks you in the privates. A conspirator records it and posts it on YouTube. And YouTube makes money off of it. You have been exploited for profit and fun.

In all fairness to YouTube, YouTube does stipulate that when you post material to the site you must have “ . . . written consent, release, and/or permission of each and every identifiable individual person in the User Submission . . . ”(1). That being said, executives are well aware that most postings do not meet this set of criteria. And they are more than happy to profit from it. (And anyone who doubts this fact, should simply count the number of copyright infringement cases against YouTube, now underway.)

Not only is YouTube a threat to our privacy, it is a threat to our freedom of speech. Do you get to choose what comments you make for the public record, or is it someone else’s job to do it for you? And this problem is exacerbated by the fact that video footage may be edited to make it look like you said something that you, in fact, did not. If someone else, in essence, can speak for you, if they can control your public image, then you have been deprived of the freedom of speech. Or to put it differently, they have stolen your identity.

Secondly, part of what it means to have free speech is to be able to speak without fear of reprisal. And on a personal level, this means that you should have the right to have a private conversation, without being worried about who is listening and what they might “do” to you. That is, you should be able to have a private conversation without worrying that your boss or your ex-wife is listening in.

Our privacy diminishes year by year. You are now on Reality T.V. But, we are, for the most part, just happy to be entertained. In the future, it is not hard to imagine a world in which people, in a sense, are paid to watch you. And people make money by selling your intimate moments. A tabloid culture. In addition, it is not hard to imagine a world in which we loose a degree of control over our public representation. Or a future in which we are afraid to say anything that might be deemed as politically incorrect. A tyranny of the masses. It was always assumed that it was the government that was to be feared, but perhaps it is us.

But, I don’t think that this is our future. With the introduction of any new communications technology, there is a initial period of confusion, in which social standards and acceptable practices are negotiated. And we are experiencing that, now. How do we maintain important social boundaries, such as privacy? How do we understand new social roles, YouTube, Napster, and eBay? How do we guard against identity theft and deception?

In particular, may ask, “What are my rights as a private person in a public space, to my image, captured by 3rd parties, for use in commercial purposes, regardless of the content of the image or video clip?”

It is clear that your rights should not be contingent upon the content of the material. Whether someone else thinks it may or may not be personally embarrassing, for instance, is hardly relevant. Who is taking the footage, what they would like to use it for, or where the footage is shot, is (or should be) completely irrelevant. Do you have a right to exist as a private person or not? If you have a right to exist as a private person, other people may not use your image without consent.

Under U.S. law it is not altogether clear exactly what your rights are. You are granted “a reasonable expectation of privacy,” but it is not altogether clear what that means (if anything). Was it a case of harassment, intrusion, fraud, or misappropriation? Who knows?

What seems pretty clear to me is that when someone takes your image and distributes it without your permission – that is, when someone takes something that does not belong to them – it is called “theft.” And this is something that we can easily understand, something that we can universalize, and something that can easily be enforced.

In order to protect the individual right to an expectation of privacy, it will be necessary to make distribution of the image or representation of a private person, without consent, a criminal act. If use and distribution of your image were only a civil matter, then people are free to use your image as they like, they simply have to be willing to pay for it. (In the U.S. court system, we have a two tiered system, criminal court and civil court. You are undoubtedly familiar with the criminal court system, but you may not be familiar with civil court, which allows you to sue for damages.) Thus, going to civil court is simply a matter of contract negotiation. The inescapable conclusion is that if your right to privacy is a civil matter, there will be, and can be, no right reasonable expectation of privacy.

In order to protect your right to exist as a private person, it will be necessary to update the law, which was originally designed for print media. Thus, we may ask, “How may this best be accomplished?” If we were to interpret “a reasonable expectation of privacy,” in a social sense, rather than in a technological sense, that would be a start. Yet, good law cannot be interpreted in terms of changing social expectations.

Conversely, if we were to interpret reasonable in a technological sense, the term would be rendered meaningless. We have almost no reasonable expectation of privacy, in this day and age. And in the year 2030, it is not clear if a reasonable expectation of privacy would even include your own thoughts.

In light of these concerns, it may be necessary to craft new law. I propose the following.

I. Public Distribution of Private Images
Any public distribution of a recorded image or representation of a “private person,” not the concern of a legal proceeding, shall be prohibited without the express written consent of the private person, and will constitute a criminal act.

A. Any alteration or distortion of a recorded image or representation of a private person is prohibited, without express written consent and approval of the altered image.

B. Falsification of the context in which the recorded image, representation, or event occurred is prohibited, without express written consent and approval of altered content. (Falsification of context is analogous to altering or distorting an image.)

II. Use and Possession of Private Images
Use or possession of images of a private person, by persons not party to a “private event,” is prohibited and is punishable by fine.

A. Use and possession of images or representations of a “private person,” by someone participating in a “private event,” is not prohibited.

B. Distribution of image or representation of a “private person” to individuals party to a “private event” is not prohibited.


In addition, it will be necessary to stipulate if, when, and how public surveillance may be used (presumably in the name of public safety). And secondly, it will be necessary to prescribe rules governing the creation of images using brain scanning technologies, infrared cameras, facial analysis software, etc., which provide information that is not publicly available to us through the 5 senses.

In summary, under this proposed law, you would be welcome to use and distribute images among your friends, but you would not be at liberty to share them with the general public. I believe that these provisions are necessary to ensure privacy, to prevent exploitation, to protect individuals from the threat of harm or interference, to protect our freedom of speech, and to promote the general good.

This would be a major policy shift, but nevertheless, I believe, a necessary one. It would change your status when you walk in a grocery store, you are not fair game for the amusement of others.

With the growth of media technologies, we have seen a gradual loss of personal privacy. And in the future, we should expect this trend to continue. Yet, the potential ramifications of a loss of privacy are alarming. As a result, it is important to take steps to secure our privacy, through government regulation. In particular, it will be necessary to restrict use and distribution of images or representations of private individuals.


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(1) See http://youtube.com/t/terms.