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

In January 2009, the Camera Phone Predator Alert bill was introduced into Congress. It raised serious concerns about privacy rights in the face of digital video technology. In so doing, it brought to light a worrying gap in current privacy regulation – the lack of rules relating to digital video privacy. To date, digital privacy regulation has focused on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriate contexts, or in an unflattering or embarrassing light. As digital video technology, including inexpensive cellphone cameras, is now becoming widespread in the hands of the public, the regulatory focus must shift. Once a small percentage of online content, digital video is now appearing at an exponential rate. This is largely due to the growth of online social networking platforms such as YouTube and Facebook. Sharing video online has become a global phenomenon, while the lack of effective privacy protection for these images has become a global problem. Digital video poses four distinct problems for privacy, arising from: de-contextualization, dissemination, aggregation, and permanency of video information. While video shares some of these attributes with text, its unique qualities necessitate a separate study of video privacy regulation. This article identifies a rationale for, and critiques suggested approaches to, digital video privacy. It argues that legal regulation, without more, is unlikely to provide necessary solutions. Instead, it advocates a new multi-modal approach consisting of a matrix of legal rules, social norms, system architecture, market forces, public education, and non-profit institutions. * Professor of Law, Co-Director, Center for Law, Technology and the Arts, Associate Director, Frederick K Cox International Law Center, Case Western Reserve University School of Law, 11075 East Boulevard, Cleveland, Ohio 44106, USA, Email: 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 at “Computers, Freedom and Privacy ‘08” at Yale University on May 21, 2008, as well as participants at the 8 th Annual Intellectual Property Scholars’ Conference at Stanford Law School on August 7-8, 2008, and participants in a Faculty Colloquium at Villanova Law School on October 10, 2008, and those at a Faculty Workshop at the University of Florida Levin College of Law on October 15, 2008. 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 B Jessie Hill, 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. Developing a Privacy Paradigm for Digital Video