Look Over Your Figurative Shoulder: How to Save Individual Dignity and Privacy on the Internet

Pervasive image capture via modern handheld technologies, combined with the universal and excessive use of the Internet, has caused a breakdown of privacy norms. Erin Andrews, a sports news journalist, has provided a face to the victimization of the masses of people whose privacy has been infringed due to the unlawful capture and online dissemination of their private images. In July 2009, Andrews received a phone call from a friend telling her there was a video on the Internet of a naked girl in a hotel room, and people were identifying her as that woman. Until that summer, Andrews—“one of ESPN’s most popular sideline reporters”—was mostly known only to football fans. In an article published two years after the surreptitiously captured video of Andrews went viral, she explained that even though her stalker is behind bars, her legal battles continue. She commenced a civil suit against the hotel where her stalker filmed her, lobbied for better legislation against stalkers, and sought to obtain the copyright to the viral video in order to send cease-and-desist letters to websites still providing access to the footage. Most, but not all, traces of this video have been removed from the Internet.

The wide scale removal of Andrews’s viral video from the Internet was an incredible accomplishment because removing any image from the Web that is not protected by copyright is almost impossible. In fact, even in Andrews’s case she was warned that she was “just going to have to get used to the fact [that she would] probably never get it all off.” The almost complete wipeout of Andrews’s video from the Internet was primarily a result of Andrews’s celebrity status, and the additional power that status provides to fight these legal battles. She has also used this influence to raise awareness about stalking and online dissemination, which plague countless women.

This Note proposes that Congress enact “takedown” legislation to deal with the void in telecommunications law that fails to address the cyber-exposure of individuals who are filmed in their private quarters unknowingly and unlawfully. It further seeks to explain why the Internet can no longer go completely unregulated with regard to these issues in particular. Finally, this Note will suggest that takedown measures are both the most effective and least restrictive means of salvaging what is left of our individual privacy rights, as they exist in the age of the Internet. In Part II, a history of privacy law will be provided, including early conceptions of privacy and modern developments of the somewhat ambiguous right. The historical background will then shift to the creation of the Internet and the structural mechanisms available for its regulation. Then the two discussions will merge to address the ways in which the Internet has changed privacy standards and reshaped the American public’s understanding of privacy.

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