“States already have laws dealing with invasion of privacy both regarding the misappropriation of someone’s likeness and the right to publicity, or of someone to control and make money from the commercial use of her own identity. These are hard to enforce in the kinds of documents we’re talking about because proving damages is really hard.”
I draw a slanted line on Birch’s whiteboard – yes, he has a whiteboard in his dining room. On the line I write privacy/publicity. The others watch. Birch looks happy. The others seem enormously skeptical at this point. I continue.
“What if other rights, beyond privacy, need to be expanded too? Consider parody. Currently, parody only covers trademarks, but today’s technology make it increasingly easy to parody individuals on a global scale. Where once the behavior might have only reached a classroom full of students or a workspace, it can now reach everywhere. One case said that parody is a form of entertainment juxtaposing irreverent representation of a trademark with the idealized image created by the mark’s owner. If we apply the notion of parody to individuals, we overcome the privacy issue of people posting the information themselves. By the very nature of a meme, we have a parody. But should there be some limitation to parody? If the ‘mark’ or art derives from a private citizen rather than a company or public figure, should parody be allowed?”
I draw another line on the whiteboard at an obtuse angle from the top of the other line and write parody limitation on it. Nan and Kevin squint eyes and furrow brows. I’m not sure whether I’m gaining them or losing them.
“Which brings us to false imprisonment.” I wait while the color drains from two faces. They are soundly back to incredulous. Deep breath.
“False imprisonment is the unlawful restraint of a person against her will by someone without legal authority or justification. This has sometimes been called freedom of movement. What if,” I take a drink, “what if we acknowledged a freedom of online movement? What if a person could not be confined by online communities or search engines to specific places and times and events?”
I draw a line to complete the triangle and write freedom of movement beneath the line.
“When it comes to private documents – memes, videos, and such – we can work from the bases of privacy, parody, and freedom of movement to form the new foundation for the right to be forgotten. And when it comes to governmental documents, the goal must not be to protect government from transparency but to protect individuals from public scrutiny. One way to do that is to eliminate the use of private parties’ names in legal actions stemming from governmental actions, namely criminal prosecution. This would enable research to continue but without tying individuals to decades-old crimes.”
I stop talking without any ceremony. I’m not sure what I want the response to be. Serving myself some cold food, I decide they can speak when ready.
“It’s messy but I think there might be something here,” Nan says.
“Only if we can clean it up enough to soundbyte it,” Kevin says.
Birch claps once and loudly. “Looks like we’ve got a new direction, gang.”