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Who Owns Your Face? - Privacy Issues

You do, but not necessarily the images.

Abigail Robinson – “Flour of the Family”

On December 15, 1890, Louis Brandeis and Samuel Warren published an article titled “The Right to Privacy” in the Harvard Law Review. This became the basis for the development of privacy law in the US. In 1900 the first privacy case was filed in NY State. In Rochester NY, Franklin Mills produced some 25,000 lithographic advertising posters (new technology at the time) with the headline “Flour of the Family,” using a portrait of teenaged Abigail Robinson. It had been obtained from a photo studio and used without her consent. Robinson claimed to be greatly humiliated by the jeers of people who recognized her face. She was treated by a physician for severe nervous shock and confined to bed. Hence, a lawsuit was filed against Franklin Mills and Rochester Folding Box Company for creating the ad. After an initial win and reversal on appeal, the law was quickly changed in 1903 in NY State followed shortly by most of the other states.

The Lena Image

In 1972, some engineers working on image digitization wanted something more interesting than the standard TV test images being used. They used a part of the centerfold in the November issue of Playboy magazine featuring Lena Soderberg.

Not known to Lena (and, for many years, Playboy), the photo quickly became the single most widely used picture in image-processing research. She was one of the first pictures uploaded to the Internet (then ARPANET). Lena was used to develop the now ubiquitous JPEG image format, a compression scheme that allows complex digital files to transfer between devices and appear on smartphones. The Lena image became a standard that was used for decades. Playboy decided not to ask for compensation; Lena, although originally asking for the image to be withdrawn, later was a featured speaker and presented awards at an International Conference on Image Processing. Lena became a celebrity but what about the image? To quote Jeff Seideman, a former president of the Society for Imaging Science and Technology, “When you use a picture like that for so long, it’s not a person anymore; it’s just pixels.”

2019: “The Reasonable Expectation of Privacy”

A Canadian schoolteacher secretly recorded his female students’ breasts with a camera pen while they were involved in normal school activities. He was charged with pornography; the case was ultimately decided by the Supreme Court of Canada in R v Jarvis, 2019, SCC 10. The decision provided clarity on the criminal offence of voyeurism but more significantly weighed in on the definition of a person’s reasonable expectation of privacy. Here is a direct quote from the key paragraphs: “…privacy in our bodies is fundamentally connected to human dignity and autonomy and cannot be easily eroded. We do not surrender our privacy interests and our right not to be surveilled merely by walking out our front door each morning…the fact that technologies now exist allowing others to invade our privacy in previously unimaginable ways does not mean that our privacy expectations upon entering public spaces have been obliterated.”

So, we have the right not to be surveilled upon entering public spaces. Let’s see now, how many cameras are there in Toronto - in hospitals, at airports, etc.? What about those police body cams? If we enter a private space, i.e. a retail establishment, apparently video surveillance is allowed.

Facebook

Facebook maintains the largest database of photographs. By some estimates it is approximately 100 billion images. When you upload an image to Facebook, although you own it, by agreeing to the Terms of Service, you have given Facebook a non-exclusive worldwide licence to use your images in any way they choose. Also, they can issue sub-licences for use to third parties as they determine without needing your approval. It is non-exclusive, so you can upload the same images to other platforms such as Instagram.

Facebook encourages others who have taken photos where you appear to “Tag” them with your name. You must be quite knowledgeable about privacy settings in Facebook to disallow this. Also, Facebook will present a suggestion to the “tagger” for your name. This is gleaned from their database and AI- assisted image processing. It’s  a very popular feature of Facebook since it eliminates “tagging” labour.

Facial Recognition

In 2015, police in Baltimore used social media tracking on people protesting the death of Freddie Gray. Facial recognition helped police identify protestors with outstanding warrants, and they arrested them directly from the crowds.

How does facial recognition work? Basically, a digital camera captures your image and its software can “frame” your face. Other system software computes defining geometric characteristics such as the distance between your eyes, the depth of your eye sockets, the distance from forehead to chin, the shape of your cheekbones and the contour of the lips, ears and chin. Up to 49 of these numbers are used to create your “faceprint.” Law enforcement agencies can then use your “faceprint” to scan massive image data bases for a match. This is very similar to the use of fingerprint data. Do you appear in these data bases? It is highly likely. Do you have government-issued photo IDs? Do you take selfies? What happens to the images taken when you use an ATM anywhere in the world? (Refer back to the paragraph on “the reasonable expectation of privacy,” at least for Canada.)

If facial recognition were extremely accurate for every case, we would have no cause for concern. However, the rate of false positives is very high, particularly for brown-skinned individuals. Independent testing in various jurisdictions has led to public outcry such that there is a movement to ban the use of image recognition by police departments and government law enforcement agencies (except of course in China). The police may not use it, but there are hundreds of applications that, unbeknownst to us, use this technology every day.

Finally, returning to the question of who owns your face? You do. As you own your body, you own your face. Decisions about what your face looks like are private personal decisions - to shave or not, to wear makeup or not, to bare the face or not, to wear a mask or even to use the Instagram cute “filters” on social media - are yours alone. But an image that you posted years ago on social media may  suddenly appear in an ad. Unfortunately, you can do nothing about this. Maybe just enjoy the fame as Lena did.

This article was first published in the Autumn 2022 Academy Quarterly Review.

by Ron Miller