The air and ocean were warm as I lay on a beach chair, headphones in. That beach was private and rarely crowded, and I wore a blue and purple two-piece swimsuit, gathered at the chest and hips with beaded strings. I was unconcerned that the relatively few people lying near me would see me in it.
When I got dressed that morning, I didn’t consider that my bikini and I might become the focus of iPhone cameras belonging to whomever would be sitting next to me. When I saw the phones pointed at me, I was alarmed and thoroughly creeped out. I didn’t really want these strangers owning the copyrights — and distribution rights — of pictures or videos of me on the beach in a swimsuit.
In all fairness, those men could have been doing any number of things with their camera phones. But in my experience, there’s little reason to follow the movements of another person with your phone unless you’re watching them on the screen, trying to keep them in the frame.
If they were recording or photographing me at that beach, it would have been illegal, but only because the beach was privately owned. On public property, consent isn’t usually needed to photograph a stranger — bikini or no bikini.
***
One summer, I, along with the other students in my sports photography class, went to a public skate park to practice taking action shots. I watched their tricks through my lens, and tried to capture them on my memory card. I don’t remember if I even thought twice about whether the wheeled acrobats appreciated their presence in my portfolio.
For a part of the session, I positioned myself near one of the chain-link fences. As I attempted to photograph the skaters, a little boy came up to me and asked through the fence if he could take a picture of me for his grandpa. I was taken aback, but he held the phone’s camera up to the iron as I agreed, probably in a questioning tone. He took the picture, walked over to a car, got in the passenger seat, and drove off.
I wasn’t thrilled with that particular progression of events. But no matter how weird I thought the whole thing was, it was still perfectly legal. Just as I could photograph the athletes, that little boy had a right to take my picture and give it to whomever he wanted — with or without my approval.
***
In 1890, attorney Samuel Warren and Supreme Court Justice Louis Brandeis published “The Right to Privacy” in the Harvard Law Review. In it, they argued that individuals have a right to keep information about themselves to themselves. For several reasons, including resurgent newspaper readership and innovations in photographic equipment, laws of the day were failing to protect personal privacy. They argued for more arduous personal privacy protection in what became the most cited law review article of all time — at least according to my Philosophy GSI.
And it’s easy to see why this idea took so quickly. For one thing, Americans have a long list of personal “rights” that they are accustomed to the government protecting on their behalf, and the right to privacy seems at least as important as our generous exemption from quartering troops. Just as it had when the article was written, the technology available to violate others’ personal privacy rights has again changed.
Today, our flimsy laws attempt to provide some level of personal privacy. You can’t record a private conversation — or interview — without the acknowledged consent of each participant. It’s illegal to take photos of another person without permission — unless they’re taken on public property. Yet, a massive percentage of people regularly carry phones and cameras that can easily — and covertly — do both of these things. And when content can be quickly uploaded from any computer, photos and videos can go viral before their subjects even know they were illicitly taken.
Meanwhile, web companies, and allegedly, the government, collect vast quantities of data about individuals’ computer use. Consumers, especially millennials, have grown accustomed to the waning privacy of the digital age. We sign away privacy rights in exchange for Facebook accounts, Google services and a plethora of other websites and apps each time we blindly agree to one of those online contracts.
The way I see it, we’re at a crossroads. As we grow more reliant on digital technology, we open more avenues to share information — about ourselves and others — that might’ve otherwise been private. Consequently, our laws grow increasingly difficult to enforce, obsolete in their methods and antiquated in terms of the content they protect. Certainly, there are upsides to diminished privacy — transparency being one of them. But, if personal privacy is something we continue to value, it needs further protection.
Victoria Noble can be reached at vjnoble@umich.edu