Is it Possible to be Left Alone?

Lately, I’ve had privacy on my mind. It’s a little personal. After all, it feels like every 30 seconds I’m clicking on or looking at something that wants a piece of my data. And privacy is at the heart of the legislation that just passed which, because of national security concerns, would either effectively ban TikTok in the United States or force the Chinese company that owns it to divest. It’s also central to the book I’m currently reading, Your Face Belongs to Us, which exposes the efforts of a stealth startup to create an enormous database of faces for use by police departments across the United States. My skin is crawling.

Nor does the grossness stop there. Heard of “sharenting”? It’s a mashup of “sharing” and “parenting” that refers to what happens when parents put their kids lives online — often, for profit. A few weeks ago I got sucked into the rabbit hole of Utah “momfluencer” Ruby Franke and her 8 Passengers YouTube channel. That channel documented the life of her family of six children with a focus on parenting advice within her Mormon faith. I’ll spare you the details but suffice it to say that Franke has since pleaded guilty to four counts of aggravated child abuse and is serving time. 

Did her children ever want to be part of her YouTube sensation? Does it even matter? 

The right of publicity, which I’ve written about in the past (see here and here), including its relationship to AI, is supposed to serve as a kind of limitation. Simply put, the right of publicity is a form of intellectual property protection that prevents the unauthorized use of a person’s name, likeness, photograph, etc. for commercial benefit. However, there’s a big limitation here. The First Amendment, as currently interpreted, limits the right of publicity to speech that is purely commercial. This means that, because Franke was documenting her family’s life, even if there was clearly a financial benefit, she was free to proceed without fear of a right of publicity claim. (She was also free to proceed because as a parent, she could consent for her children to appear on YouTube whether they liked it or not.) 

While I don’t have a lot of faith that this interpretation of the First Amendment is going to change anytime soon, my general state of alarm over privacy did make me think about other times where questions about the public dissemination of private information have come up and the relationship of these issues to technology. 

Notably, in 1890 Samuel Warren and Louis Brandeis (who went on to become a Supreme Court justice and have a university named for him) authored an article called “The Right to Privacy.” This article, which is frequently cited as the origin of the right of publicity, was prompted by the invention of the Eastman Kodak camera. As Warren and Brandeis noted, “[i]nstantaneous 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.’”

Interestingly, besides the right of publicity, the article discusses three other possible causes of action to protect privacy — false light, public disclosure of private facts, and invasion of privacy. These rights are premised on something that we seem to have lost along the way: the idea that each of us has a right to maintain control over certain information as private. Or, as Warren and Brandeis put it, “the more general right of the individual to be let alone.” They premise this right “not on the principle of private property, but that of an inviolate personality.” In particular, they call attention to the fact that there’s a difference between expressing thoughts or ideas — the “conscious products of labor” — and “often involuntary expression… in the ordinary conduct of life.” 

It’s hard to imagine any phrase from the 19th century hitting home so hard today. In an era dominated by social media, AI deepfakes, cameras everywhere, and a relentless stream of true crime documentaries and podcasts made without the need for permission from victims or their families, it seems like there are no boundaries between what is private and what is public anymore.

I don’t have any great answers here other than to say that it seems like it’s time to revisit the idea that Warren and Brandeis so eloquently promoted: that each person has a right to be left alone unless they say otherwise, regardless of their age or their celebrity.