Moving at the Speed of Creativity by Wesley Fryer

Photographic privacy is over

The days of photographic privacy are over. It is important for people of all ages, but especially teenagers who are most prone to rash behavior, to understand this and its implications. Chris Foresman’s November 2, 2009 article for ARS Technica, “Students suspended for racy slumber party pics, file lawsuit,” is the latest well-publicized case in point. Two sophomore girls at Churubusco High School in Churubusco, IN, , were punished at school as student athletes for photos taken at a sleepover with friends the previous summer. Chris wrote:

Obviously the two girls didn’t want everyone to see the pictures, so they posted them with the privacy controls set so only friends could see them. However, the photos were copied and eventually ended up on the desk of Austin Couch, the school’s principal.

Couch then punished the girls based on the school’s athletic code, which provides sanctions for student athletes that engage in behavior in or out of school that “creates a disruptive influence on the discipline, good order, moral or educational environment at Churubusco High School.” The two girls were barred from participating in any extracurricular activities, made to apologize for the photos to an all-male coaches board (which the complaint describes as “profoundly embarrassing”), and forced to undergo “humiliating” counseling.

Back in April 2009, a California court ruled photos posted to an online social networking website (MySpace in this situation) cannot be considered “private.” This latest case from Indiana will put this plea to the test again, but in slightly different circumstances since the posters DID share the images with privacy controls enabled.

I agree with John Palfrey’s point about online privacy on social networking sites in the article. Palfrey is a Harvard University law professor and co-director of the Berkman Center for Internet and Society. Polfrey, quoted in the article,

…said that the idea of privacy on social networking websites is merely an illusion, even with added privacy controls. He also believes that schools have a right to regulate a student’s online activities, but the court will have to determine if the two girls in this case had their First Amendment right violated.” The fact that it took place in cyberspace instead of in a classroom doesn’t mean you don’t enforce the rule,” he told the AP.

I do not agree that schools should have an unrestricted right to “regulate a student’s online activities,” however, and will watch this case with interest. We definitely have situations in some of our Oklahoma schools where officials have stepped over the line and ignored the fact that students in schools still do possess constitutional rights, including limited free speech. In this Churubusco High School case, it appears the school officials took an overly broad interpretation of what constitutes a “disruption in the school environment.” Since the photos were taken the previous summer, made no reference to school, and were not brought into the school by the students in question, it seems highly doubtful the school administration can make a disruption case following the Tinker precedent. Of course, I’m also not a school lawyer, so take my opinion with a grain of salt.

Whatever the court rules in this case, the fact is that these photos have gone public and the girls in question are understandably embarrassed. This supports my primary point in this post: Photographic privacy is over. Whether or not you post a photo online or someone else does, it can end up on the desk of your school principal, your boss at work, or your mother. We may not like it, we can gripe about it, but this is the reality of the online, networked world in which we live.

In contexts like this, it certainly seems wonderful NOT to be growing up as a teen today. With all your friends armed with digital cameras and camcorders on their cell phones, how many different incidents from your youth could have landed you in the principal’s office if the school district took the same posture towards those photos as school officials in Fort Wayne, Indiana have in this case?

toasting at a party

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9 responses to “Photographic privacy is over”

  1. CraigM Avatar

    Interesting Wes, I thought you were going to be talking about the facial recognition that is now available in consumer products (like Google’s Picasa.) Not only are the photos on the web/in the cloud, it is going to get easier and easier to identify the person in the picture and associate it back to YOU!

    Google has facial recognition built into both their Picasa desktop and web products. If limited facial recognition (works best when the person if facing the camera) is available for free in consumer products, imagine what is available in professional products (profile view, body view, rear view, clothing matching, age adjustment, etc.)

    And how long before this technology is available to consumers. Combine high quality recognition with web crawlers, and finding all those pictures of YOU is going to be possible. Hmmmmmm.

    Yes, comparing, identifying and finding (Googling) images, audio and video is going to get as easy in the future as finding text is today. Chew on that for awhile.


  2. EdTechSandyK Avatar

    Thank you for posting this. I’m going to add it to the arsenal of information that I share with teachers about taking care with social networking. It’s not just students who need to understand that online privacy is a complete illusion.

    I presented to a group of elementary teachers last year on being careful with what they post to their Facebook profiles. I pulled some personal content(such as their phone numbers)and possibly controvesial content (groups they belonged to with the word “*itch” in their titles, photos of them tossing back a few drinks) from their profiles even though I wasn’t their Facebook friend, and listed the content (without their names) as examples of what I was able to find without much effort. I later found out that they felt “violated” that I had found that information because I wasn’t their Facebook friend. Which I thought was interesting since they voluntarily posted it out there and put no privacy settings on it.

    The whole incident really made me realize how strong the illusion of privacy, as in “Only my friends can see what I post” is. And how naive they were – I showed them how easy it was for me to save down one of their photos with a simple right-click and “Save As”. Much like what was done from the photos of the girls you reference in your post. First Amendment issues aside, we have much, much work to do in educating all age groups in this area.

  3. Tim Tyson Avatar

    I’m not so sure the scope of privacy that is dying is limited to just photographic privacy but has the potential to include almost all privacy. With pervasive cameras, facial identification technology (iPhoto, Picasa, etc.), combined with GPS technology, cell phone connectivity, and the always-on cloud, location information and far more will increasingly be aggregated closer and closer to real time.

    Within 5 seconds of my standing on it, my bathroom scale will now even share my weight and BMI with my iPhone, my doctor’s iPhone, and the whole web (if I choose)! Is n-o-t-h-i-n-g sacred any more? :o)

    But therein lies the difference: if I choose. We need a public conversation about our rights to control the aggregation and dispersement of information about us in the cloud. Then we need a legal framework to support a newly defined privacy. The more I ponder this, the more complex it seems!

  4. Scott McLeod Avatar

    I’m with you, Wes. I think the principal overreached on this one. I believe this case is a loser for the school in court…

  5. Lisa Avatar

    Churubusco High School is not located in Fort Wayne, IN. It is located in the town of Churubusco, IN, in another county of Indiana.

    The case has gone to court, but the initial punishment has already been reduced.

    In Indiana, as in many states, student athletes sign a code of conduct contract with their district which covers all students participating in statewide officiated athletics and music activities. Essentially, the code of conduct binds involved students who will represent their school, to a higher standard of behavior than their non-participating peers. It applies to drinking, smoking, reckless driving, language, lewd behavior, etc… Scholarships through the IHSAA are based on compliance with this code contract.

    Other organizations that these girls might find themselves in the near future are also governed by codes of conduct. Fraternities, sororities, college athletics, and scholarship contests regularly have agreed to conduct codes.

  6. Wesley Fryer Avatar

    Lisa: Thanks for the location correction, I changed that reference in the original post.

    Do you have a link to any news articles giving details about the reduction in the initial punishment? I am not finding anything about it on Google News, Google Blog search or Technorati.

    I’m familiar with student athlete codes of conduct, but surely there are some limits to the scope of behavior for which schools can punish students under these contracts?

  7. Lisa Avatar

    Local Video Coverage of the case can be found at

    Each community has the ability to set standards and ramifications. What would fly in New York City or even Indianapolis is unlikely to be the standard of conduct in Churubusco. Consequently, the culture of rural Indiana is somewhat different than more metropolitan areas.

    If the girls were Freshmen it would be possible to argue that they were unaware of the code of conduct required to participate. They aren’t. I am parent of two children that have signed similar codes of conduct in Fort Wayne. Students know the rules before they play.

    Churubusco High School has a graduation rate of 95%. The school educates approximately 430 students in grades 9-12. The population is 99% Caucasian. The school district has a total of 3 buildings.

  8. Wesley Fryer Avatar

    Thanks so much for the link and the additional background, Lisa.