Privacy Was Doomed by Imagining it as Property

DURING BERLIN’S ANNUAL FUCKPARADE in 2000, Matthias Fritsch took a video of a bare-chested reveler whose hypnotic dance moves on the Rosenthaler Straße would subsequently earn him, in the blighted annals of internet virality, the moniker Technoviking. This parade attendee was not pleased by the sudden virality and sued Fritsch for infringing on his personality rights. A Berlin court eventually sided with the unwilling celebrity, who continues to remain anonymous, and ordered Fritsch to pay back what he’d earned from YouTube advertisements, as well as court fees. This past summer, New Yorker Lilly Simon realized that a stranger had taken a video of her while she was riding on the subway and posted it to TikTok, speculating that her neurofibromatosis type 1 tumors were monkeypox lesions. Simon posted a response calling the person out for filming her, and the original video was eventually removed—long after it had already gone viral—though it’s unclear if it was deleted by the poster or taken down by the app.

These incidents and their digital afterlives reveal the diminished extent, in an age where antisocial surveillance masquerades as social media, to which any of us might expect to have a right to “privacy” in public. In the United States, this right is a relatively new legal idea, despite the fact privacy as a concept predates its articulation. Originally conceived in the nineteenth century, it arose in response to one of the technological advances of the time: the camera. As more and more people started taking photographs—and later films—of people without their consent, the legal right to privacy was gradually established through both common law and legislation across the United States. But because the notion of privacy is an ambiguous one that evades easy definition, the first way that the right “to be let alone,” as it was originally described by Judge Thomas Cooley and adopted by Samuel Warren and Louis Brandeis, took root in the legal system was through the language of private property: your likeness was proprietary. In this grim logic of commodification, we find the substrate of today’s mass mutual surveillance and data-harvesting.

Long before TikToking on the iPhone 14 Pro Max, there was the Kodak Camera, first unveiled in 1888, which made a previously expensive and cumbersome venture comparatively accessible to the masses. By 1896, over one hundred thousand had been sold, and those who couldn’t put them down were dubbed “Kodakers.” Advertisements likened photography to hunting, and men were often shown taking “shots” of women unbeknownst to them. The New York Times observed in 1889 that “if the young lady refuses he will perhaps strive to get her picture when she is not on guard just out of spite.” Photographs of random people were sold everywhere and even given away for free in packs of cigarettes. “Many people felt a profound sense of exposure and violation upon being photographed, or upon finding their photographs displayed and sold in photo shops, or used in advertisements, without their consent,” writes Robert E. Mensel in “Kodakers Lying in Wait.”

Among the United States government’s first confrontations with the question of privacy when it came to a person’s likeness—although the word privacy wasn’t used—came in March 1888, when Republican congressman John Robert Thomas introduced “A Bill to Protect Ladies” into the House of Representatives, which held that women who were related or married to American citizens were “entitled to protection from the vulgar and unauthorized use, for advertising purposes, of their likeness.” Inspired by the fact that images of First Lady Frances Cleveland were being used to advertise everything from cosmetics to ashtrays, the bill, in seeking to restrict the usage of women’s photographs, asserted that a woman’s likeness was essentially the property of the men she was related or married to, underlining exactly to whom the property rights of citizenship were accorded. Ultimately, the bill didn’t pass.

Privacy per-se wouldn’t be debated in the courts until the following century, when Abigail Roberson sued Franklin Mills and the Rochester Folding-Box Company for using her photograph to advertise flour. In Roberson v. Rochester Folding Box, Roberson’s lawyer argued that she possessed both a “right to privacy” and a “property right in her own features and beauty, which is absolute until voluntarily surrendered.” Although the case was overturned in appeals, it led New York State to create one of the first right to privacy statutes, concerning one’s likeness being used without consent for advertising or trade. Other states followed, and more and more breach of privacy cases relating to photographic images were brought to trial—though the legal strategies varied. Almost forty years after Roberson’s case, in March 1938, Pauline Myers won her case against Afro-American Publishing Co., who had published a photograph of her in a newspaper that was meant to be used for an artist’s model but was altered to accentuate her semi-nudity. Myers was one of the first Black people to bring forward a case regarding a breach of privacy and won based on New York’s privacy laws, but in Myers v. Afro-American Publishing Co., the action was regarded as libel since the photographs had been altered. Privacy rights weren’t mentioned at all. But while applying New York’s privacy statue, the photographs were instead described as her “exclusive property.”