Is there a constitutional right to keep your selfies private?

Last updated: Thursday, September 4, 2014, 3:28 PM

The media uproar over a massive leak of celebrity photos is putting a new focus on an interesting legal question: Do you have a right to keep your 'selfies' off troublesome websites?

In case you've been on vacation for the past few days, here's what happened: Hackers posted unauthorized photos of famous people, in various states of dress (or undress), on a website that specializes in posting shocking photos. The users of the website, called 4chan, post photos in a contest to see who can outdo other users, and the photos usually come offline quickly.

But in recent days, photos apparently purloined from celebrity cellphone and mobile accounts made their way onto 4chan and were downloaded by people who manage other websites that show such pictures of celebrities.

The victims included Internet icon Jennifer Lawrence and model Kate Upton.

Soon after the images started appearing on these sites, the international media was reporting the massive leak of sensitive photos. The photos also appeared on Reddit, a popular aggregation site that traditional media types mine for news stories.

Some celebrities confirmed their images were authentic; others said their images were fake; and still others had no comment, or said they were appalled by the incident.

The Washington Post reported that the hackers on 4chan bragged about getting photos from Apple's iCloud service, which Apple users can access to back up their phones and tablets.

Apple quickly said its service is secure, but it can't control how safely users pick their usernames, guard their passwords or select answers to security questions designed to thwart hackers from accessing accounts.

So let's dig into the legal basics. For starters, the Fourth Amendment to the Constitution says that 'the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.'

This basic right keeps the police from accessing your smartphone for photos and other information, unless they can get a warrant from a judge. The Supreme Court confirmed this basic right in June, when Chief Justice John Roberts said police 'had to get a warrant' to look at cellphones belonging to people who have been arrested.

If the police can't easily access your photos, then hackers really don't have a legal right to get into your private accounts. The charges related to hacking online accounts vary, and can include federal wiretapping charges.

In this week's case, the hackers most likely took the photos from a remote storage service where the celebrities backed up their digital content. The website Mashable looked at the most recent person convicted of swiping celebrity photos from e-mail and remote accounts.

In 2011, the U.S. Attorney's office indicted Christopher Chaney of Jacksonville, Florida, on charges of accessing protected computers without authorization, damaging protected computers, wiretapping, and aggravated identity theft. He was accused of illegally accessing accounts belonging to more than 50 people, including actress Scarlett Johansson and singer Christina Aguilera.

Chaney was convicted and sentenced to 10 years in prison. The FBI investigation showed that Chaney followed celebrities on their social media accounts and looked for account and password clues to gaining access to their e-mail accounts. Other celebrity hackers have received sentences ranging from probation to extended jail time.

But what about the websites that aren't involved in the hacking, but later post the photos once they've appeared on other websites?

In the case of the recent celebrity photo blitz, one adult website is allegedly requiring celebrities to prove they own the copyrights to the photos that were stolen.

In general, a person owns the copyright to their own original work, including photographs they take, so that would include selfies. But if someone else takes a photograph of you, that person owns the copyright, with your implied permission to be included in the photograph.

Under the Digital Millennium Copyright Act, a celebrity (or even a regular person like yourself) can send what is known as a take-down request to a digital publisher, claiming that they (or you) own the copyright to an image, at which point the digital publisher must remove the image. If the publisher contests the request, it can re-post the image after a certain time period, and then you can request again to have it removed. At that point, lawyers get involved in the process.

If someone else takes a photo of you (or a celebrity), the process gets a bit more complicated.

For instance, in addition to the copyright issue, there are issues related to your privacy rights, which differ greatly from a celebrity's privacy rights. Non-celebrities enjoy basic privacy rights that were articulated a long time ago by Louis Brandeis, before he became a Supreme Court justice, in the basic principle of 'the right to be left alone.'

These rights generally include protection from unreasonable intrusion upon the seclusion of another; using another's name or likeness; unreasonable publicity given to another's private life; and publicity that unreasonably puts another in a false light in public.

Celebrities are considered public figures and have limited privacy rights, but they enjoy the right of publicity under the First Amendment. This right allows celebrities (and you) to be compensated for the use of their images under state laws.

The practical problem for celebrities and the not-so-rich-and-famous is the viral nature of the Internet and social media. Once a photo is passed around the Internet and lives on hundreds of websites, it's a logistical nightmare to contact each website or social media publisher with a take-down order.

This reality is a central concern over new laws in Europe that recognize a 'right to be forgotten.'

In May, the European Union Court of Justice said it would enforce regulations that allow citizens in 28 nations to ask that websites delete words and images about them that 'appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purpose for which they were processed and in the light of the time that has elapsed.'

The law is expected to lead to a flood of take-down requests served on publishers such as Google and Microsoft. Users in Europe could ask Google to filter out all search results that return an unauthorized selfie or other image.

And in another angle on the selfie controversy overseas, Wikimedia has refused to delete photographs of monkeys. The images were being sold for commercial purposes but made their way onto the free-use Wikimedia Commons website.

The photographs were taken by monkeys who used the photographer's camera to take selfies. Wikimedia claims the photographer doesn't have a copyright claim.

Scott Bomboy is the editor-in-chief of the National Constitution Center. Philadelphia's National Constitution Centeris the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center's blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America's history and a variety of expert contributors.