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The media uproar over a massive leak of celebrity photos is putting a new focus on an interesting legal question: Is there a constitutional right to keep your selfies private?
Soon after unauthorized photos of famous people started appearing on various websites, The Washington Post reported that the hackers on 4chan bragged about getting photos from Apple’s iCloud service, which Apple users can access to back up their phones and tablets. (Apple quickly said its service is secure, but it can’t control how safely users pick their usernames, guard their passwords or select answers to security questions designed to thwart hackers from accessing accounts.)
According to a recent article published by Constitution Daily concluded that “if the police can’t easily access your photos, then hackers really don’t have a legal right to get into your private accounts. The charges related to hacking online accounts vary, and can include federal wiretapping charges.”
But what about the websites that aren’t involved in the hacking, but later post the photos once they’ve appeared on other websites?
In the case of the recent celebrity photo blitz, one adult website is allegedly requiring celebrities to prove they own the copyrights to the photos that were stolen.
In general, a person owns the copyright to their own original work, including photographs they take, so that would include selfies. But if someone else takes a photograph of you, that person owns the copyright, with your implied permission to be included in the photograph.
Under the Digital Millennium Copyright Act, a celebrity (or even a regular person like yourself) can send what is known as a take-down request to a digital publisher, claiming that they (or you) own the copyright to an image, at which point the digital publisher must remove the image. If the publisher contests the request, it can re-post the image after a certain time period, and then you can request again to have it removed. And, that’s the point where lawyers get involved in the process, as the article said.
If someone else takes a photo of you (or a celebrity), the process gets a bit more complicated.
For instance, in addition to the copyright issue, there are issues related to your privacy rights, which differ greatly from a celebrity’s privacy rights. Non-celebrities enjoy basic privacy rights whereas, since celebrities are considered public figures, they have limited privacy rights, but they enjoy the right of publicity under the First Amendment. This right allows celebrities (and you) to be compensated for the use of their images under state laws.
The practical problem for celebrities and the not-so-rich-and-famous is the viral nature of the Internet and social media. Once a photo is passed around the Internet and lives on hundreds of websites, it’s a logistical nightmare to contact each website or social media publisher with a take-down order.
So do you have a Constitutional right to keep your selfies private? The answer to this question obviously varies depending upon not only who takes the photo, but also the subject matter involved. Eventhough, we are in the digital age, it may be best to go back to the basics of Polaroid pictures.