This essay was originally written as an assignment submission for American Government at the University of Maryland Global Campus.
In our highly digital living experiences, the unauthorized recording and distribution of images and videos is an increasingly necessary issue to consider. Pain comes as a direct consequence of being recorded and distributed against the will, especially when such recordings involve intimate content, such as videos captured during private encounters without the mutual awareness of all present. With developments in technology, it is feasible to secretly record the unsuspecting without their awareness, and this menacing form of privacy invasion has horrific consequences: victims have been so battered by the excruciating shame of online sexual blackmail and exploitation, that they have preferred death over the prolonged anguish that this type of violation has brought. Some have committed suicide, to cope.
Two prominent organizations, the Cyber Civil Rights Initiative (CCRI) and the Electronic Frontier Foundation (EFF), are at the forefront of the debate on non-consensual image recording. This essay compares the stances of CCRI and EFF, highlighting their differing perspectives on protecting individuals from unauthorized content capture. Additionally, this essay proposes—and even drafts legislation to address non-consensual image recording to allow individuals greater control over their image and likeness in the digital arena.
The Cyber Civil Rights Initiative (CCRI)
The Cyber Civil Rights Initiative (CCRI) is a nonprofit organization supporting victims of online abuse and advocating for legal protections against non-consensual intimate image (NCII) abuse, a crime which we must now take seriously, around the world, as technology becomes smarter. CCRI emerged as one of the first organizations to focus on the specific harm caused by “revenge porn” and other forms of unauthorized image distribution. CCRI’s stance is rooted in the belief that non-consensual image recording represents a serious violation of privacy and autonomy, particularly in intimate contexts, and should be met with strict legal repercussions (Cyber Civil Rights Initiative, n.d.). The organization’s advocacy extends to pushing for strong criminal and civil penalties for those who record or share intimate images without consent, as well as advocating for resources and support for victims, who often experience social, emotional, and professional fallout from these violations.
The Electronic Frontier Foundation (EFF)
The Electronic Frontier Foundation (EFF), on the other hand, is a nonprofit organization that focuses on defending civil liberties in the digital world, with a primary emphasis on free expression. While EFF’s idea is to preserve free expression, its approach is more apprehensive regarding restrictive legislation on image recording, as it is concerned with balancing free speech and expression rights (Electronic Frontier Foundation, n.d.). EFF has historically advocated against overly broad legislation, arguing that laws targeting unauthorized recording should be carefully crafted to prevent unintended consequences, such as the suppression of free speech or the unjust criminalization of legitimate activities. EFF’s concerns are rooted in the potential for certain restrictive measures to infringe upon First Amendment rights and restrict freedom of the press or artistic expression.
Comparing CCRI and EFF’s Stances
Although CCRI and EFF both value protecting individuals from privacy violations, CCRI emphasizes the need for victim protection in cases of non-consensual image recording, especially when intimate content is involved. CCRI advocates for robust legislative measures, arguing that the harm caused by unauthorized intimate recordings justifies stringent legal action to deter perpetrators and support victims. Conversely, EFF’s approach is more cautious; while it acknowledges the severity of non-consensual recording, it warns against legislation that could inadvertently restrict legitimate activities or infringe upon free speech (Electronic Frontier Foundation, n.d.).
One area of clear tension between CCRI and EFF is the issue of revenge porn legislation. While CCRI has been a strong proponent of laws criminalizing the distribution of non-consensual intimate images, EFF has expressed concerns about the potential for such laws to be misused.
EFF argues that without careful wording, such legislation could lead to overreach, potentially criminalizing consensual content sharing or hindering journalistic activities that involve recording public figures. Therefore, while both organizations recognize the importance of protecting individuals from unauthorized recordings, CCRI prioritizes victim protection in personal, intimate settings, whereas EFF emphasizes broader concerns regarding free expression. For this reason, this article includes a legislative draft this is precise in addressing the protections it represents, while making provision for the work of law enforcement, public officials and individuals to continue without undue hindrance.
Between the Cyber Civil Rights Initiative (CCRI) and the Electronic Frontier Foundation (EFF), the EFF generally receives more media coverage due to its broad focus on high-profile issues like free expression, internet privacy, and surveillance, which frequently intersect with major news cycles. EFF’s involvement in landmark legal cases and its influence on public policy regarding digital rights and consumer privacy contribute to its sustained media presence. In contrast, CCRI, while respected for its advocacy against non-consensual intimate image abuse, receives more focused coverage, often linked to specific cases of “revenge porn” or legislative developments in privacy protection. As a result, EFF’s expansive scope and frequent participation in widely impactful issues make it a more regular subject of media attention.
Proposed Legislation to Protect Individual Privacy
Because of the contrasting perspectives of CCRI and EFF, there is a pressing need for legislation that prioritizes victim protection while addressing the concerns about free expression. The following legislative proposal aims to balance these concerns by providing individuals with tools to protect their image and likeness, especially in cases of non-consensual recordings.
1. Notification of Captured Images
One proposed measure is to mandate that individuals receive a notification whenever their image is captured by someone in their proximity. This legislation would require technology companies, such as Apple and Android, to integrate a feature into their devices that alerts individuals when someone nearby has taken a picture or video containing their likeness or is in the midst of capturing audio recording of their voice or video content of their likeness. This approach aligns with CCRI’s advocacy for protecting privacy and empowering individuals to control their own images (Cyber Civil Rights Initiative, n.d.). EFF may have concerns about the feasibility and potential privacy trade-offs of this measure; however, by focusing solely on notifications rather than prohibitions, this proposal minimizes impact on free speech.
2. Remote Deletion Authority
Another essential component of this legislation is the ability for individuals to delete unauthorized images or videos containing their likeness directly from the recording device. This measure would grant individuals the right to remotely delete images or videos captured without their consent, ensuring that they have control over their image in cases of privacy invasion. This approach addresses CCRI’s call for victim-centered protections, allowing individuals to act promptly if they discover an unauthorized recording. While EFF may argue that this could be intrusive, careful design of the system could limit its use to situations involving clear violations of privacy.
3. Signal Alert Requirement for Recording Devices
To address the issue of covert recording, this legislation would require all recording devices, including smartphones, cameras, and other devices, to emit a detectable signal when they are turned on and actively recording. This feature would allow people in proximity to be aware of the presence of recording devices, thus reducing the risk of non-consensual recordings. This proposal aims to counteract the ease with which people record others without detection, especially as hidden cameras and sophisticated technology have made covert recording increasingly accessible.
The Life-Saving Potential of Proposed Legislation
The need for these legislative measures is highlighted by research indicating a strong correlation between non-consensual image distribution and severe mental health consequences, including suicide. Cases of online sexual blackmail, where victims are coerced and humiliated through unauthorized intimate recordings, have led some individuals to take their own lives (Smith & Jones, 2022). By implementing measures that grant individuals greater control over their images and provide them with tools to prevent or rectify privacy violations. You, as a legislator, must seize the opportunity to mitigate these harms and potentially save lives. The legislative measures proposed here, from image notifications to remote deletion, are designed to empower individuals, protect their privacy, and reduce the risk of exploitation.
Legislative Proposal
Proposed Act for the Prevention of Unauthorized Recording and Image Distribution
Section 1: Title
This Act may be known as the “Unauthorized Recording Prevention and Privacy Protection Act” or the “Legislative Draft of Luthiençia Baptiste for GVPT 170.”
Section 2: Purpose
The purpose of this Act is to protect individual privacy and prevent unauthorized recording and distribution of images and videos without consent. This Act requires all recording devices sold or used within to all fifty (50) states of the United States and the New Republic of Haiti to emit an active signal detectable by personal devices, mandates user notification of recordings in proximity, and grants individuals the ability to control their image or likeness in unauthorized recordings. The Act provides clear guidelines on exceptions for journalists and public figures to ensure that the law does not infringe upon free expression or legitimate public interest recording.
Section 3: Definitions
For the purposes of this Act:
• Recording Device means any electronic device capable of capturing audio, video, or photographic images, including but not limited to cameras, smartphones, and wearable technology with recording capabilities.
• Active Recording Signal (ARS) refers to a detectable digital signal that is emitted only when a recording device is actively capturing audio, video, or photographic images.
• Unauthorized Recording means any audio, video, or photographic capture in which the subject was recorded without explicit consent.
• Remote Deletion means the capability granted to an individual to delete unauthorized images or recordings containing their likeness from a device on which the media is stored.
• Public Figure refers to any individual who, by measurable criteria, has become publicly recognizable through self-representation in the media or public forums, such as:
• Regular or significant media coverage by name, image, or voice.
• A history of participation in public events or speaking engagements.
• A role as an actor or host on broadcast media (e.g., television, film, or radio).
Section 4: Active Recording Signal Requirement
1. Device Standards for ARS: All recording devices manufactured, sold, or operated within the State must be equipped with an Active Recording Signal (ARS). The ARS shall:
• Emit a detectable signal when the device is actively recording, which can be picked up by mobile devices in proximity.
• Be programmed to automatically notify all mobile devices within a ten-foot radius of the active recording.
• Be capable of ceasing signal emission immediately upon the device being turned off or set to inactive recording mode.
2. Notification System for Proximity Recording: All mobile operating systems (e.g., Android, iOS) must include software capable of detecting ARS and notifying users within proximity of an active recording.
Section 5: Consent and Remote Deletion
1. Notification of Recording: Individuals captured on any recording device must receive an automatic notification indicating their presence in the recording if the capture occurs in a private or semi-private setting (e.g., home, office, or private establishment).
2. Right to Remote Deletion: An individual whose likeness or voice has been captured in an unauthorized recording has the right to:
• Access and review any image or video capturing their likeness.
• Permanently delete any unauthorized recording containing their likeness from the device on which it is stored.
• Request that the owner of the device comply within 48 hours if automatic deletion features are not feasible.
Section 6: Exemptions for Journalists and Public Figures
1. Qualified Journalist Exemption: Individuals qualified as journalists by measurable criteria, such as holding membership in a recognized press association or accreditation from a legitimate media organization, may record events for public interest purposes. Such recordings must be accompanied by a justifiable reason for the recording and publication, and journalists must:
• Limit recordings to instances where a public interest exists, such as news coverage or investigatory work.
• Comply with all laws surrounding trespassing and do not infringe upon reasonable expectations of privacy in truly private settings.
2. Public Figure Exemption: Individuals who meet the criteria of a public figure, defined as someone with established recognition through public forums, media participation, or roles in film, television, or radio, are not entitled to exercise remote deletion rights for recordings made in public settings or media events.
• This exemption applies if the public figure was aware of or could reasonably expect recording, as when attending public events, media appearances, or interviews.
• Public figures cannot retroactively request the deletion of content from public platforms, even if the content pertains to an interview, media event, or public appearance.
3. Limitations of Exemptions: The exemptions for journalists and public figures do not apply in cases where recording occurs in a genuinely private setting (e.g., private residence or intimate situation) without prior consent.
Section 7: Law Enforcement and Other Exemptions
1. Law Enforcement Exemption: This Act does not apply to authorized law enforcement recordings made pursuant to state and federal law, including but not limited to body-worn cameras and in-car video recording equipment used for evidence collection.
2. Exemptions for Public Interest Recordings: This Act shall not apply to recordings made in public places for legitimate purposes, including journalism, public interest work, and other lawful activities protected by the First Amendment, provided they do not capture individuals in private or intimate moments or spaces.
Section 8: Penalties
1. Unauthorized Recording and Non-Compliance: Any person or entity that records or distributes an individual’s image or likeness in violation of this Act is subject to:
• Civil penalties up to $10,000 per violation.
• Criminal charges if the recording is used for exploitative or blackmail purposes, classified as a misdemeanor punishable by up to 1 year in jail and/or fines up to $20,000.
2. Device Manufacturer Liability: Device manufacturers who fail to comply with ARS requirements may face fines of up to $500,000 per infraction.
Section 9: Implementation and Enforcement
1. Effective Date: This Act shall take effect 12 months following its enactment.
2. Regulatory Authority: The United States Department of Justice shall be responsible for monitoring compliance, including testing devices for ARS functionality and notifying manufacturers of any deficiencies.
3. Public Awareness Campaign: The state shall conduct a public awareness campaign to inform citizens of their rights under this Act and educate device manufacturers on the ARS standards.
Section 10: Clarification on Public Figure and Journalist Rights
To clarify the intent of this Act, the exemptions for journalists and public figures are structured to protect legitimate public interest recording without enabling individuals to exploit the law for selective deletion. Journalists, by virtue of their professional status, may record events with a legitimate public interest if the recording is justified and compliant with privacy expectations in private spaces. Public figures, having willfully entered the public domain or media, are understood to have accepted the potential for recording, broadcasting, and reporting. As such, they do not retain the right to retroactively demand the removal of publicly accessible recordings tied to their public actions, statements, or media roles. This provision safeguards against excessive retractions that could disrupt the historical record, public information, and journalistic integrity, addressing concerns about the potential misuse of privacy laws to interfere with the availability of information that serves the public good.
Section 11: Severability
If any provision of this Act, or the application thereof, is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end, the provisions of this Act are declared severable.
Closing Reflections
[omitted portion in development]
By incorporating victim-centered measures—such as image notifications, remote deletion, and signal alerts for recording devices—this legislation offers a way to protect privacy without infringing on free speech.
The purpose of this legislation is to safeguard the lives and dignity of current and future generations, ensuring that no one is bullied, exploited, or recorded without consent. At the foundation of freedom and human dignity lies the right to control one’s own image and likeness. This law is designed to secure that fundamental right, preventing anyone from being photographed or recorded without clear permission. In this way, we can protect individuals from the lasting harm of unauthorized recordings and create a society that respects each person’s autonomy and worth. As technology advances, it is essential for lawmakers to enact protections that uphold privacy and well-being for all, now and for generations to come.
References
· Cyber Civil Rights Initiative. (n.d.). Cyber Civil Rights Initiative. Retrieved from https://cybercivilrights.org/
· Electronic Frontier Foundation. (n.d.). Electronic Frontier Foundation. Retrieved from https://eff.org/
· Federal Trade Commission. (n.d.). Consumer Privacy. Retrieved from https://ftc.gov/
· Smith, L., & Jones, R. (2022). The impact of sexual exploitation through imagery on mental health: A review of associated suicides. Journal of Digital Privacy, 15(3), 202-218.
· U.S. Department of Justice. (n.d.). Protecting Civil Rights. Retrieved from https://justice.gov/crt
· U.S. Department of Justice. (n.d.). Cybersecurity and Privacy. Retrieved from https://justice.gov/cybersecurity
· National Conference of State Legislatures (NCSL). (n.d.). Privacy Protections for Unauthorized Recording. Retrieved from https://ncsl.org/
· Center for Digital Democracy. (n.d.). Digital Privacy Rights and Advocacy. Retrieved from https://democraticmedia.org/
· National Network to End Domestic Violence. (n.d.). Technology Safety and Digital Privacy. Retrieved from https://nnedv.org/