ROBERT SIEGEL, HOST:
It wasn't so long ago that for someone to video your image and record your voice required a crew; a cameraman, a sound man, and maybe someone else who set up the lights. They probably worked for a television station and the likelihood of such a crew filming you was limited by the sheer expense of doing it.
Today, a child with a Smartphone, and maybe a mono-pod, can do what that crew did. And with streaming video and a Facebook page or a Twitter account, that kid can also do a lot of what the television station did.
Where does this leave the notion of privacy? Do those still images that Elise Hu's Narrative photo device takes every 30 seconds or the videos that that kid takes with a phone, or Google Glass, do they leave any room where we can really expect privacy and freedom from media?
Well, Kurt Wimmer is a lawyer whose specialties are privacy and data security. He's represented many major media companies. Welcome to the program.
KURT WIMMER: Thank you, pleasure to be here.
SIEGEL: Let's start. What do we enjoy in the way of a right to privacy, which I gather was really articulated in response to what passed for high-tech in the 1890s.
WIMMER: That's exactly right. Back in 1890, a very influential article was written by Justice Brandeis and Samuel Warren talking about the right to privacy, a right to be let alone which really hadn't existed in our law before then. And that was a reaction to the new technology at the time, which were cameras that could take photographs and be published in newspapers, which greatly alarmed Brandeis, who was quite a socialite and didn't like photographs of his friends and family showing up in the newspaper.
SIEGEL: Well, over 100 years later, do I - let's say, someone jealous of my privacy, am I anyway assured by law that Elise Hu just can't take pictures of me every 30 seconds?
WIMMER: Well, it depends a little bit on what state you're in. But generally in terms of the taking of the photograph itself, it'll depend on the space that you're in - whether you're in a place where you really have a legitimate expectation of privacy. And courts have gone through various types of environments where you either do or don't have that kind of expectation.
SIEGEL: But especially in the digital age, that sounds like a moving target - a place where you have legitimate expectation...
WIMMER: Absolutely right, and every time there's a change in technology the law has to struggle to catch up a bit.
SIEGEL: Well, say I ran into you at a restaurant and we talk, and I'm wearing some subtle device that's recording and photographing you unbeknownst to you. Do I have a right to do that? Do you? And do you have a right for me not to do that to you?
WIMMER: Well, it depends a little bit about whether it's a photograph or a video or audio. So, in most cases, if you're in a public restaurant or a public bar, you absolutely do have the right to photograph whoever you're with. If, on the other hand, you're recording audio and the conversation that you're having is one that the person would not expect to have recorded, there might be a different right of privacy there attached to that.
SIEGEL: As a journalist, I'm liking this freedom I have to record people. But is a bar really a place where everybody who goes there assumes I could be photographed right now?
WIMMER: If it's a class type of bar where anyone can get in, really, especially these days, have to assume the risk that you might be photographed.
SIEGEL: Let's say I go to the restaurant and I see Elise Hu sitting at the table next to you. And I record her - with her knowledge - for some online multi-media build-out. Unbeknownst to you, you're at the next table. I incidentally take pictures of you and your mysterious lunch or companion. Fair game?
(LAUGHTER)
WIMMER: In a public place it would be. And my lunch companion is really mysterious, I should have picked a more mysterious place to go, I think.
SIEGEL: Well, what's a place that isn't public?
WIMMER: Well, for example, courts have looked at public restrooms, dressing rooms; in some states, hotel rooms or hospital rooms.
SIEGEL: Anyplace where you might be undressed...
WIMMER: Well, yeah, that's one way to look at it. It might be at the undressed rule.
SIEGEL: Yeah. What if I take that video that I shot of Elise Hu in the restaurant, where we happened to catch you and your mysterious lunch companion 'cause you were sitting next to them and I put on a blog and it's embedded and we sell advertising based on that image?
WIMMER: Well, that's a great question that raise it two other issues, because we had really been talking about just capturing the image or the audio. And that sort of brings into play one area of law. If you're actually publishing that brings into play a different area of law; and if you're publishing for profit that's even something else. So if you take a photograph in a place where you're entitled to take it, generally if you publish it for a personal use or a newsgathering use, at least in the U.S., you should be OK.
If, however, you start charging for it or you put advertising next to it, then there is a different kind of right, called the Right of Publicity, kicks in. And the person whose image is being used for a commercial venture needs to give consent. And most likely needs to be paid something.
SIEGEL: Kurt Wimmer, thanks a lot for talking with us.
WIMMER: Oh, my pleasure. Thank you for having me.
SIEGEL: Kurt Wimmer is the chair of the Privacy and Data Security Practice at the law firm of Covington and Burling in Washington D.C.
If you'd like to see some of the images that Elise Hu caught on her Narrative clip, you can find them at our tech blog, All Tech Considered, at NPR.org. Transcript provided by NPR, Copyright NPR.