September 3, 2014
Solution For Celebrity Nude Photo Hack
Obvious: Keep Files Out Of Cloud
Elisa D'Amico, Daily Business Review
September 3, 2014
Hacker waiting for something with binary code in background
Labor Day weekend was an enjoyable three-day holiday for most. But on Sunday, a massive celebrity nude
photo leak took the Internet by storm. Naked and scantily-clad snapshots of a number of celebrities appeared
online and spread virally. According to media reports, victims included Jennifer Lawrence, Hillary Duff, Kate
Upton, Lea Michelle, Mary Kate Olsen, Mary Winstead, Rihanna and Scarlet Johansson.
Online social media sites such as Twitter and Reddit exploded with links to the photographs. Some websites
later replaced the uncensored photographs with censored versions. Others removed them completely.
Some of the celebrity victims have publicly responded, claiming that the photographs that were leaked were
fake. Others, such as Lawrence, have responded (via spokesperson) by saying: "This is a flagrant violation of
privacy. The authorities have been contacted and will prosecute anyone who posts the stolen photos of Jennifer
Lawrence." In fact, the FBI is working to identify the individual or individuals that stole these images.
In a different approach, celebrity victim Mary E. Winstead took to Twitter: "To those of you looking at photos
I took with my husband years ago in the privacy of our home, hope you feel great about yourselves." She
certainly hit the nail on the head. The public dissemination of these photographs was a clear invasion of
privacy. None of these victims consented to the distribution of their photographs. Just because one or more of
them had, at some point, appeared nude on screen, does not constitute consent for the distribution of private,
intimate photographs.
Oddly, an overwhelming number of individuals speaking out about this incident--both celebrities and noncelebrities--are placing blame on the victims. Actress Lena Dunham might have said it best when she tweeted:
"The 'don't take naked pics if you don't want them online' argument is the 'she was wearing a short skirt' of the
web. Ugh." I agree with you, Ms. Dunham.
In cases where intimate photographs or videos is disseminated online without consent (nonconsensual
pornography) and which do not involve celebrities, the public response is typically the same.
The difference is that when the victim is a celebrity, there is a blending of celebrity culture and misogynist
culture. As Mary Anne Franks, University of Miami law professor and vice president of the Cyber Civil Rights
Initiative explains, "This idea [exists] that women should always be blamed for what happened to them."
Carrie Goldberg, an attorney from Brooklyn, New York, agrees that "It's a very common reaction to blame the
victim. … The energy is so focused on victim blaming."
Advice From Gervais
In this case, because the victims are celebrities, blame seems to be amplified. But celebrity or not, when an
individual is a victim of an invasion of sexual privacy, the victim is treated much differently than when a
different type of privacy is invaded. If someone is a victim of identity theft or their bank account number is
stolen, the public generally does not cast blame for having engaged in online banking or shopping on the
internet.
If these celebrities took photographs with the intent of keeping them private, then reposting, sharing or
retweeting of these photographs is another invasion of privacy. This is not to say that viewing or even sending
a photograph makes one criminally or punitively liable, but if the individual in the photograph did not consent
to its distribution, engaging in this activity certainly advances an invasion of privacy.
An interesting comment was posted on Twitter by comedian Ricky Gervais, who said: "Celebrities, make it
harder for hackers to get nude pics of you from your computer by not putting nude pics of yourself on your
computer." While the overall tone of the comment—blaming the victims instead of the hackers—is not the
right approach, technically, Mr. Gervais' advice isn't all that bad.
To keep information truly safe, keep it offline. These days, information is right at our fingertips. We can post
photographs in an instant and share them on the "cloud," and we can and do utilize online photo and video
storage. And then we are shocked when our information is leaked, hacked, or otherwise exposed. It seems like
every month or so, some company announces that its information has been hacked or breached. Just last
month, Community Health Systems faced a data breach where its network was compromised and non-medical
patient identification data was transferred outside the United States. In December 2013, Target suffered a data
breach that reportedly originated from the breach of an HVAC contractor's access to the company's data
network.
What an individual or a couple wants to do in the privacy of their own home is their own business. You want
to take intimate photographs, have at it. But you should consider keeping what is private, truly private. Keep
your files out of the clouds and use private storage. Spend $50 on an external hard drive (even better if it is
password-protected and encrypted), save your photographs on that drive, and store that drive in a fire-proof
safe that is bolted to your closet floor.
What happens in the bedroom, keep it in the bedroom. And the best way to do that is to keep your files out of
the cloud.
Elisa D'Amico is a commercial litigator and an associate in the Miami office of K&L Gates. Her practice
focuses in part on representing clients in the internet advertising and affiliate marketing industries.