the real problem with Instagram's policy is not the user

Boy, the Internet cycle moves fast. The something gets attention/backlash to that something/backlash against the backlash progression happens so quickly I can't keep up.

Instagram has published some pretty obnoxious Terms of Service that go into effect next year, saying that Instagram can use your pictures in advertising, without your permission or even your notification. Some people are freaking out about it. But some people are already pushing back, noting (correctly) that an Instagram user can just opt out of the service altogether. That's an important point, and while I'm probably going to ditch Instagram when the change goes into effect, I understand people who will stick with the service. That's a rational choice they can make. The issue is with the nature of photography and photo sharing. The problem is not on the side of Instagram's users. It's on the side of people who are in a private place who are photographed by Instagram's users and then have their likeness used in advertising without their notification or consent.

Think about it: you go to an invite-only party in a private residence. You are not a celebrity. The law says that you have a reasonable expectation of privacy, which means that your likeness cannot be sold without your permission. But somebody is snapping Instagram photos that include you without your knowledge or consent. Now Instagram can sell those photos of you, without your permission or even the notification of the person who took them, in a place where you have a legal expectation of privacy.

Doesn't that seem like a problem? Yes, if you don't want your photos used in this way, you can just not use Instagram. Agreed there. But the reason a photo-sharing service is a particularly worrisome application of this kind of advertising is the high likelihood of other people having their likenesses monetized without their consent or even knowledge. And I personally think that Instagram is responsible if their service is being consistently misused in this way.

So look at this blog. I'm using Google's free blogging platform. I don't pay for the URL or the server space. Tomorrow, if Google said to me "if you're going to keep using Blogger, we're going to start selling your posts," I'd be bummed out. But I'd have the the right to opt out, by not using Google's free service. I'd have to make a choice as to whether the free platform is worth it for me, and if so, I'd consent to having my work sold. I'd have a choice. But imagine if I was taking someone else's writing that hadn't been previously published and publishing it on my blog. They couldn't opt out; they would have no ability to consent or refuse. That's essentially what happens if an algorithm is deciding whether to use an Instagram photo in an advertisement.

One of the things that has consistently bothered me about the new digital erosion of privacy is how many people are willing to make decisions for the rest of us. In her infamous interview with Jimmy Kimmel, Emily Gould made the popular argument that "the private is now public." And I just remember thinking, says who? When did we vote on this? Who passed these laws? I understand that technology changes culture. But so many of the changes that are described as inevitable are actually not; they're instead the product of choices people make. And we have a right as a society to make decisions on the basis of our democratic process, and not give up consent as a matter of what is "just going to happen" given technological change. We've got to privilege consent.

For myself, I'm realizing how little thought I've given to taking pictures with other people in them and uploading them to social networks. That lack of thought is exactly the problem. From now I intend to ask anyone in my pictures for explicit permission first.