“Living in a world of grey, two M.I.T graduates invent a gadget that will not only rival one of the worlds largest tech companies but the morality of our society as a whole.”
That’s how first-time filmmaker Antonio R. Cannady summarizes Ex Post Facto, the 13-minute short film he published on YouTube on August 5, 2014. The film’s subtitle is even more direct: “If rape was legal, would you do it?”
Before I discuss the video, here it is for viewing. In terms of acting, writing, and production values, it’s well-made for a first-time film. But be warned: not only are there spoilers below, but the video itself (were it released in theaters) would likely be rated at least PG-13 for sexual violence, sexuality, and language. The climactic scene beginning around 11:35 is difficult to watch.
So if you chose not to watch, here’s a summary. (Like I said, spoilers.)
A Short Synopsis
Most of the film is dialogue between the two aforementioned recent college grads who have invented a new digital eyewear device with great commercial potential. Exactly what it does isn’t made clear at first, but what is clear is the role that each character plays in the story. One is the Voice of Greed and Amorality; he actually says “morals hinder progress; do yourself a favor and dump ‘em.” The other is the Good Guy With the Conflicted Conscience about what the effect the device might have on others.
From both the dialogue and the characters’ nonverbal interactions, we soon get the idea that the device does something that women will find creepy and invasive. The characters are told that “women’s rights groups, religious groups, civil rights groups” and others will be up in arms over the device. The Voice of Greed brushes these comments off.
Then another character makes an offhand remark that the device “basically rapes” people–a characterization already foreshadowed in the film’s promotional material. This comes off as a figure of speech, and at this point I was sure that the fictional device does exactly what I’ve predicted now for years: captures the three-dimensional images of unsuspecting strangers so they can be made into digital avatars for prurient uses by others.
Sure enough, that’s exactly where the plot goes. When Good Guy can no longer take being spurned by the Girl Next Door, he spies her through the window using his invention.
In seconds, Good Guy sees, through his eyewear, a digital version of the scanned woman walk into his apartment door with a sexy outfit and a come-hither look.
You can guess where their interactions go from there.
Wait, Where Did That Come From?
If the film ended there, it would have, in my humble opinion, made a much more salient contribution to the conversation about digital eyewear. But it doesn’t. By some magical plot device that remains a mystery to me even after I interviewed Mr. Cannady, the real-life woman whose image was scanned by the glasses actually feels, physically and in real time, what Good Guy is doing to her digital avatar. So, whether he realizes it or not (and the whole moral dilemma leading up to this moment suggests that he does), he ends up actually raping this woman, albeit from a distance.
Leaving aside the ongoing debate over whether it’s ever necessary to depict such acts on film, maybe Mr. Cannady is using this inexplicable plot device as an intentionally brutal metaphor to drive home the invasiveness of wearable surveillance technology. In his conversation with me, Mr. Cannady seems to confirm this:
Yes, it was a very intentional and harsh commentary on the morality of this technology. … [T]he bad apples that populate our society who will most likely turn this fun device into something of a nightmarish proportions. Everyone from hackers, pedophiles and morally bankrupt individuals will find ways to misuse [digital eyewear] for their own personal and misguided use. I wanted my film Ex Post Factoto paint a harsh and cold reality to get people to think before embarrassing this technology.
What bothers me about this explanation, however, is how Mr. Cannady defines the “technology” that he’s attacking. If he were talking about some fantasy machine with the magical powers to do what his film depicts, then by all means, yes: that’s evil. (Not to mention “criminal,” which is why I still don’t quite understand his use of the phrase “ex post facto”; as Mr. Cannady acknowledges, that term of art refers to criminal punishment for an act that was legal at the time it was committed.)
But reading Mr. Cannady’s statements in context, it’s clear that he’s actually talking about present-day digital eyewear, rather than the technology’s dark potential. The ellipses and brackets in the foregoing quote are where I’ve redacted Mr. Cannady’s frequent references to a certain digital eyewear manufacturer that begins with the letter “G.” Their device gets enough harsh press without being associated in print with issues like this that have nothing to do with it whatsoever. But it’s not an isolated example; Mr. Cannady makes the same connection on the film’sFacebook page, in a radio interview, and in press coverage. This allows his film to ride the G-word’s wave of publicity, but in a way that is so disconnected from the “reality” he purports to portray as to be, frankly, irresponsible and counter-productive. The result is to muddy the otherwise important statements his film could be making.
The Very Real Issues That the Film Tries to Raise
Setting aside that final scene, however, Ex Post Facto does a spot-on job in ringing alarm bells about how a sizeable portion of the populace is going to use three-dimensional scanning technology as soon as it becomes available. Cannady isn’t the first to make the connection. Back in 2009, a video advertisement for the mobile app Nude It–-which purported to allow users to see through clothing–went viral. Despite the obvious fact that it was a spoof–something the originators quickly acknowledged–that didn’t stop thousands of eager users from demanding the ability to download it.
Likewise, the porn industry has been working for several years on ways to capitalize on augmented reality and, more recently, the virtual reality craze reignited by the Oculus Rift. (Not to be outdone by digital media, it is also widely predicted that sex-slave robots will be “quite pervasive” somewhere around the 2030s.)
Perhaps the most enabling development, however, has been the beta-level introduction of mobile devices able to scan three-dimensional environments in real time. Devices like Occiptal’s Structure Sensor and Project Tango demonstrate technology that, once perfected, will enable the masses to create their own digital avatars of anything and anyone around them. You can have three guesses as to how selfie-obsessed teens will use this this technology, as long as each guess is “sexting.”
Mr. Cannady is absolutely correct, then, to be concerned about how “hackers, pedophiles and morally bankrupt individuals” will use this type of technology for immoral and socially destructive purposes. As just one example, police officer and AR Dirt podcaster Joseph Rampolla frequently observes that, wherever the pornography industry leads, child pornographers are soon to follow.
How might the legal system punish individuals who surreptitiously record and create 3-D avatars of strangers and put them to prurient ends? Again, Ex Post Facto could have asked these questions, but its “rape” angle distracts from the real answers. As I’ve suggested before, the most obvious mechanism is the right of publicity, that quasi-intellectual property right that allows someone to control the commercial exploitation of their own likeness. There are real questions of public policy as to whether it’s a good idea to address such personally invasive actions through a cause of action designed to regulate commerce, but courts have repeatedly relied on it to quash similarly unauthorized exploitation of prurient images. There are also several laws recently adopted or in the works that criminalize revenge porn, although the viability of such laws in light of the First Amendment is still unknown.
In the end, despite its flaws, Ex Post Facto raises important questions about the exploitation that augmented reality wearable devices can’t yet–but will soon be able to–enable. These are real issues that real people will be dealing with very soon.
Brian D. Wassom is a commercial litigator in Southeast Michigan whose practice focuses on copyright, trademark, publicity rights, media law, and related subject matter.
This article previously appeared here: http://www.wassom.com/ex-post-facto.html#sthash.Y1wLjRUT.dpuf