Another in my series of posts on privacy in our connected world… with a particular focus on photography and imaging
As I continue to listen and communicate with many others in our world – both ‘real’ and ‘virtual’ (although the lines are blurring more and more) – I recognize that the concept of privacy is rather elusive and hard to define. It changes all the time. It is affected by cultural norms, age, education, location and upbringing. There are differing perceptions of personal privacy vs collective privacy. Among other things, this means that most often, heavy-handed regulatory schemes by governments will fail – as by the very nature of a centralized entity, the one-size-must-fit-all solution will never work well in this regard.
A few items that have recently made news show just how far, and how fast, our perception of privacy is changing – and how comfortable many of us are now with a level of social sharing that would have been unthinkable just a few years ago. An article (here) explains ‘ambient video’ as a new way that many young people are ‘chatting’ using persistent video feeds. With technologies such as Skype and OoVoo that allow simultaneous video ‘group calls’ – teenagers are coming home from school, putting on the webcam and leaving it on in the background for the rest of the day. The group of connected friends are all ‘sharing’ each other’s lives, in real time, on video. If someone has a problem with homework, they just shout out to the ’virtual room’ for help. [The implications for bandwidth usage on the backbone of networks for connecting millions of teens with simultaneous live video will be reserved for a future article!]
More and more videos are posted to YouTube, Vimeo and others now that are ‘un-edited’ – we appear, collectively, to be moving to more acceptance of a casual and ‘candid’ portrayal of our daily lives. Things like FaceTime, Skype video calls and so on make us all more comfortable with sharing not only our voices, but our visual surroundings during communication. Maybe this shouldn’t be so surprising, since that is what conversation was ‘back in the day’ when face-to-face communication was all there was…
We are surrounded by cameras today: you cannot walk anywhere in a major city (or even increasingly in small towns) without being recorded by thousands of cameras. Almost every street corner now has cameras on the light poles, every shop has cameras, people by the billions have cellphone cameras, not to mention Google (with StreetView camera cars, GoogleEarth, etc.) One of the odd things about cameras and photography in general is that our perceptions are not necessarily aligned with logic. If I walk down a busy street and look closely at someone, even if they see me looking at them, there might either complete disregard, or at most a glance implying “I see you seeing me” and life moves on. If I repeat the same action but take that person’s picture with a big DSLR and a 200mm lens I will almost certainly get a different reaction, usually one that implies the subject has a different perception of being ‘seen’ by a camera than a person. If I repeat the action again with a cellphone camera, the typical reaction is somewhere in between. Logically, there is no difference: one person is seeing another, the only difference is a record in a brain, a small sensor or a bigger sensor.
Emotionally, there is a difference, and therein lies the title of this post – The Perception of Privacy. Our interpretations of reality govern our response to that reality, and these are most often colored by past history, perceptions, feelings, projections, etc. etc. Many years ago, some people had an unreasonable fear of photography, feeling that it ‘took’ something from them. In reality we know this to be complete fallacy: a camera captures light just like a human eye (well, not quite, but you get the idea). The sense of permanence – that a moment could be frozen and looked at again – was the difference. With video, we can now record whole streams of ‘moments’ and play them back. But how different really is this from replaying an image in one’s head, whether still or moving? Depending on one’s memory, not very different at all. What is different then? The fact that we can share these moments.. Photography, for the first time, gave us a way to socialize one person’s vision of a scene with a group. It’s one thing to try to describe in words to a friend what you saw – it’s a whole different effect when you can share a picture.
Again, we need to see the logic of the objective situation: if a large group shares a visual experience (watching a street performer for example) what is the difference between direct vision and photography? Here, the subject should feel no difference, as this is already a ‘shared visual experience’ – but if asked, almost every person would say it is different, in some way. There is still a feeling that a photograph or video is different from even a crowed of people watching the same event. Once again, we have to look to what IS different – and the answer can only be that not only can a photo be shared, but it can shared ‘out of time’ with others. The real ‘difference’ then of a photo or video of a person or an event is that it can be viewed in a different manner than ‘in the moment’ of occurrence.
As our collective technology has improved, we now can share more efficiently, in higher resolution, than in the days of campfire songs and tales. Books, newspapers, movies, photos, videos… it’s amazing to think just how much of technology (in the largest sense – not just Apple products!) has been focused on methods improving the sharing of human thought, voice, image. We are extremely social creatures and appear to crave, at a molecular level, this activity. In many cultures today, we see a far more relaxed and tolerant attitude towards sharing of expression and appearance (nudity / partial nudity, no makeup, candid or casual appearance in public, etc. etc.) than existed a decade ago. We are becoming more comfortable in ‘existing’ in public – whether that ‘public’ is a small group of ‘friends’ or the world at large.
One way of looking at this ‘perception of privacy’ is through the lens of a particular genre of photography: streetphotography. While, like most descriptions of a genre, it’s hard to pin down – basically this has evolved to mean candid shots in public – sort of ‘cinema vérité’ in a still photo. Actually, the term paparazzi is a ‘sub-group’ of this genre, with typically their focus limited to ‘people of note’ (fashion, movie, sports personalities) – whose likenesses can be sold to magazines. While this small section has undoubtably overstepped the bounds of acceptable behavior in some cases, it should not be allowed to taint the larger genre of artistic practice.
The facts, in terms of what’s legally permissible, for ‘streetphotography’ do vary by state and country, but for most of the USA here are the basics – and just like other perceptions surrounding photography, they may surprise some:
- Basically, as the starting premise, anything can be photographed at any time, in any place where there is NOT a ‘reasonable expectation of privacy’.
- This means, that similar to our judicial system where ‘innocent until proven guilty’ is the byword, in photography, the assumption is that it is always permissible to take a picture, unless specifically told not to by the owner of the property on which you are standing, by posted signs, or if you are taking pictures of what would generally be accepted as ‘private locations’ – and interestingly there are far fewer of these than you might think.
- The practice of public photography is strongly protected in our legal system under First Amendment rulings, and has been litigated thousands of times – with most of the rulings coming down in the favor of the photographer.
- Here are some basic guidelines: [and, I have to say this: I am not a lawyer. This is not legal advice. This is a commentary and reporting on publicly available information. Please consult an attorney for specific advice on any legal matter].
- Public property, in terms of photography, is “any location that offers unfettered access to the public, and where there is not a reasonable expectation of privacy”
- This means, that in addition to technically public property (streets, sidewalks, public land, beaches, etc. etc.), that malls, shops, outdoor patios of restaurants, airports, train stations, ships, etc. etc. are all ‘fair game’ for photos, unless specifically signposted to the contrary, or if the owner (or a representative such as a security guard) asks you to refrain from photography while on their private property.
- If the photographer is standing on public property, he or she can shoot anything they can see, even if the object of their photography is on private property. This means that it is perfectly legal to stand on the sidewalk and shoot through the front window of a residence to capture people sitting on a sofa… or for those low flying GoogleEarth satellites to capture you sun-bathing in your back yard… or to shoot people while inside a car (entering the car is forbidden, that is clearly private property).
- In many states there are specific rulings about areas within ‘public places’ that are considered “areas where one has a reasonable expectation of privacy” such as restrooms, changing rooms, and so on. One would think that common sense and basic decorum would suffice… but alas the laws had to be made…
- And here’s an area that is potentially challenging: photography of police officers ‘at work’ in public. It is legal. It has been consistently upheld in the courts. It is not popular with many in police work, and often photographers have been unjustifiably hassled, detained, etc. – but ‘unless a clear and obvious threat to the security of the police officer or the general public would occur due to the photography’ this is permitted in all fifty states.
- Now, some common sense… be polite. If requested to not shoot, then don’t. Unless you feel that you have just captured the next Pulitzer (and you did it legally), then go on your way. There’s always another day, another subject.
- It is not legal for a policeman, security guard or any other person to demand your camera, film, memory cards – or even to demand to be shown what you photographed. If they attempt to take your camera they can be prosecuted for theft.
- One last, but very important, item: laws are local. Don’t get yourself into a situation where you are getting up close and personal with the inside of a Ugandan jail… many foreign countries have drastically different laws on photography (and even in places where national law may permit, local police may be ignorant… and they have the keys to the cell…) Always check first, and balance your need for the shot against your need for freedom…
What this all shows is that photography (still or moving) is accepted, even at the legal level, as a fundamental right in the US. That’s actually a very interesting premise, as not many things are specifically called out in this way. Most other practices are not prohibited, but very few are specifically allowed. For instance, there is no specific legal right to carpentry, although of course it is not prohibited. The fact that imaging, along with reporting and a few other activities are specifically allowed points to the importance of social activities within our culture.
The public/private interface is fundamental to literally all aspects of collective life. This will be a constantly evolving process – and it is being pushed and challenged now at a rate that has never before existed in our history – mainly due to the incredible pace of technological innovation. While I have focused most of this discussion on the issues of privacy surrounding imaging, the same issues pertain to what is now called Big Data – that collection of data that describes YOU – what you do, what you like, what you buy, where you go, who you see, etc. Just as in imaging, the basic tenet of Big Data is “it’s ok unless specifically prohibited.” While that is under discussion at many levels (with potentially some changes from ‘opt out’ to ‘opt in’), many of the same issues of ‘what is private’ will continue to be open.