May 17th, 2013

NYC Photographer Skirting Legal Boundaries by Secretly Photographing Residents in Their Homes 32

By Carlos Miller
The Neighbors

Photo by Arne Svenson from his collection titled “The Neighbors” where he secretly photographs neighbors from his second-floor apartment as they abide in their high-rise apartments.

 

A New York City photographer who is making national news by photographing people through their apartment windows, then displaying the photographs in an art gallery, is claiming he is not invading their privacy because he is simply lurking in the shadows of his own apartment with a telephoto lens.

“The neighbors don’t know they are being photographed; I carefully shoot from the shadows of my home into theirs,” he told the New York Post.

The Post, the Los Angeles Times and NBC New York couldn’t figure out whether these residents had a reasonable expectation of privacy, which would make photographer Arne Svenson in violation of the law.

But Mickey Osterreicher, general counsel for the National Press Photographers Association, a man who tirelessly defends the right of citizens to take pictures in public, had a pretty good idea.

He stated the following in an email to Photography is Not a Crime Thursday:

It is one thing to have a right to photograph and record in public, but another to invade the reasonable expectation of privacy of another person. Now add commercial use without a model release and possible violations of penal law – I would think he could be a poster child for what not to do as a photographer.

It also does not help matters that he has made public admissions regarding his actions. He may ultimately have a defense in that he claims he does “not show his subjects’ faces” but as for likening himself to a bird watcher – people have a reasonable expectation of privacy in their homes - such protections don’t apply to birds, even in their nests.

Osterreicher also sent a link to New York Penal Code regarding unlawful surveillance:

§ 250.45 Unlawful surveillance in the second degree. A person is guilty of unlawful surveillance in the second degree when:

1. For his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or

2. For his or her own, or another person’s sexual arousal or sexual gratification, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or

3. (a) For no legitimate purpose, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent. (b) For the purposes of this subdivision, when a person uses or installs, or permits the utilization or installation of an imaging device in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a hotel, motel or inn, there is a rebuttable presumption that such person did so for no legitimate purpose; or

4. Without the knowledge or consent of a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person. Unlawful surveillance in the second degree is a class E felony.

The Electronic Frontier Foundation defines a “reasonable expectation of privacy” in regards to Fourth Amendment violations and unlawful search and seizures by police.

The Fourth Amendment only protects you against searches that violate your reasonable expectation of privacy. A reasonable expectation of privacy exists if 1) you actually expect privacy, and 2) your expectation is one that society as a whole would think is legitimate.

The EFF further breaks it down in regards to private residences:

Residences. Everyone has a reasonable expectation of privacy in their home. This is not just a house as it says in the Fourth Amendment, but anywhere you live, be it an apartment, a hotel or motel room, or a mobile home.

However, even things in your home might be knowingly exposed to the public and lose their Fourth Amendment protection. For example, you have no reasonable expectation of privacy in conversations or other sounds inside your home that a person outside could hear, or odors that a passerby could smell (although the Supreme Court has held that more invasive technological means of obtaining information about the inside of your home, like thermal imaging technology to detect heat sources, is a Fourth Amendment search requiring a warrant). Similarly, if you open your house to the public for a party, a political meeting, or some other public event, police officers could walk in posing as guests and look at or listen to whatever any of the other guests could, without having to get a warrant.

In other words, we have a reasonable expectation of privacy in our homes unless we are standing in front of a clear window where anybody walking or driving by can see us.

Svenson lives in a second-floor apartment and uses a telephoto lens, most likely at least a 600 mm lens, although it is not described in the articles.

It is only described as a birdwatcher’s lens but considering he has sold prints that measure 5 feet by 2 feet,  it is most likely a lens that enables him to view things he would be unable to see with the naked eye. Click here to view some of his images.

If we’re going to give this guy the right to peer into people’s homes with a telephoto lens, then we have no choice but to give the government the same right, which is probably why the New York City Police Department doesn’t appear overly concerned about this guy.

After all, it was only a few months ago that the NYPD revealed that it is interested in acquiring drones to further its militarization of the Big Apple.

But it appears the NYPD is behind the curve when it comes to using drones to invade people’s personal space because a Seattle woman recently complained that a man flew a drone with a camera attached to it outside her third-story window for what he called “research” purposes:

This afternoon, a stranger set an aerial drone into flight over my yard and beside my house near Miller Playfield.  I initially mistook its noisy buzzing for a weed-whacker on this warm spring day.  After several minutes, I looked out my third-story window to see a drone hovering a few feet away.  My husband went to talk to the man on the sidewalk outside our home who was operating the drone with a remote control, to ask him to not fly his drone near our home.  The man insisted that it is legal for him to fly an aerial drone over our yard and adjacent to our windows.  He noted that the drone has a camera, which transmits images he viewed through a set of glasses.  He purported to be doing “research”.  We are extremely concerned, as he could very easily be a criminal who plans to break into our house or a peeping-tom.

There is no denying that with the advancement of technology, our expectation of privacy continues to lessen. The bad news is that this technology will continue to be used against us by the government. The good news is that we also have the power to monitor them right back.

But if I can’t see you from inside my home while you are standing outside, then you shouldn’t have the right to see me.


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  • http://www.facebook.com/kenbankers Kenneth Bankers

    simply agree. thats it no speil i just agree.

  • http://www.facebook.com/joes.nyc Joseph Holmes

    Mickey Osterreicher, general counsel for the National Press Photographers Association comments on Svenson’s “commercial use without a model release…” But showing and selling art prints or even publishing a book of art photos is not commercial use that would require a model release. It falls under artistic use protected by the First Amendment. Nussenzweig v. DiCorcia. http://www.courts.state.ny.us/reporter/3dseries/2006/2006_50171.htm

    • http://www.facebook.com/rob.lewis.37454 Rob Lewis

      I agree. Ethically he would need to knock on their door and at the very least say

      “Hi, I took a photo of you while you were sleeping, sign this, and here is some cash”

  • Name

    Do you really have an expectation of privacy in front of a large open window?

    • http://www.facebook.com/people/Christopher-McKenna/1501804144 Christopher McKenna

      Perhaps. Suppose the window is on the 95th floor with no buildings that tall around? Suppose the window faces the ocean? There are times when that might be a reasonable expectation.

      • Name

        I would say that is still unreasonable. If you can see others, they can see you. Even an infant understands that principle.

        • bj

          Yes but a home and a street are not the same.

          • Barking Dog

            If he was in the street and could see in, that’s one thing. I think they had a case in Florida where a guy taped neighbors having sex and he could see it from the street.

        • http://www.hisnameistimmy.com Tim in SF

          The test is very simple: “A reasonable expectation of privacy exists if 1) you actually expect privacy, and 2) your expectation is one that society as a whole would think is legitimate.”

          Look at “The Neighbors #11″. Here’s a man on a couch in his room, well away from the window. You could not see him from the street – only from across or above.

          Or, look at “The Neighbors #4″ where a person is reclining on their couch, playing with their hair. This is not visible from the street, either.

          Any reasonable person would expect privacy under these conditions. The expectation of privacy on second floor the second floor, well away from the window, not visible from the street below, is entirely reasonable.

          These photos are one of the few instances where photography *is* a crime.

          • http://www.facebook.com/people/Bryan-Broyles/100002829382304 Bryan Broyles

            You’re incorrect in part. Not being visible from the street is irrelevant. If the person is visible to others, you don’t have expectation of privacy from those others. If you openly display yourself in such a way as to only be visible to one person, you have no expectation vis a vis that person. Here, given the location of the buildings, it’s almost impossible to argue that they were not aware that the neighboring buildings could see in their spaces when they failed to close their blinds.

  • http://www.telescreen.org Vidiot

    I would think that people sleeping in their bedrooms would enjoy a reasonable expectation of privacy, particularly if they’re above the ground floor. IANAL, but would think that a lawyer that chose to litigate this would have a pretty good shot at convincing a jury the same.

  • http://www.facebook.com/mark.olish Mark Olish

    He’s a friggin’ peeper, plain and simple.

  • hazy

    Hmm, wouldn’t a telephoto lens be considered “enhanced” vision and thus be regarded as invasive? The whole point of thermal imaging being considered invasive is because human eyes do not see infrared. Thus the same argument can be made that any photograph that is made with optical zoom is an invasive search as the human eye is not physically capable of zooming to that degree.

    • Name

      But I think that has to do with the government’s use of it. I think you, as a private citizen, are allowed to be as invasive as you want in public. Courts have even struck down “up skirting” laws that try to restrict what creepy old men do in public. The government might not be able to drive down the street, thermal imaging everyone in search of drugs, but I think you can as an individual.

      • hazy

        If you believe Kyllo V. United States to be a proper interpretation of the 4th amendment that would only strengthen an injured party filing a tort against another private individual.

        Privacy laws are codified at the state level. For example in Nevada under NRS 200.604 it states,

        “Capturing image of private area of another person; distributing, disclosing, displaying, transmitting or publishing image of private area of another person; penalties; exceptions; confidentiality of image.”

        Private area can be interpreted in this way as anything inside the person’s house. Perhaps an argument can be made for photographing an individual’s window with a normal camera with no zoom as that does not allow any enhanced vision equal to a 4th amendment search.

        However, this individual used a high powered zoom, photographed and distributed the photographs. Nevada even codifies against this activity under the same section stating,

        ” 1.  Except as otherwise provided in subsection 4, a person shall not knowingly and intentionally capture an image of the private area of another person:

        (a) Without the consent of the other person; and

        (b) Under circumstances in which the other person has a reasonable expectation of privacy.

        2.  Except as otherwise provided in subsection 4, a person shall not distribute, disclose, display, transmit or publish an image that the person knows or has reason to know was made in violation of subsection 1.”

        • Phred

          I interpret “private area” to mean private parts of a person’s body, not the inside of the home.

          • hazy

            Ahh you’re right, however it codifies under peeping in the following regard under NRS 200.603  

            “Peering, peeping or spying through window, door or other opening of dwelling of another; penalties.
            1.  A person shall not knowingly enter upon the property or premises of another or upon the property or premises owned by him or her and leased or rented to another with the intent to surreptitiously conceal himself or herself on the property or premises and peer, peep or spy through a window, door or other opening of a building or structure that is used as a dwelling on the property or premises.
            2.  A person who violates subsection 1 is guilty of:
            (a) If the person is in possession of a deadly weapon at the time of the violation, a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5,000.
            (b) If the person is not in possession of a deadly weapon at the time of the violation, but is in possession of a photographic or digital camera, video camera or other device capable of recording images or sound at the time of the violation, a gross misdemeanor.”

          • http://www.hisnameistimmy.com Tim in SF

            It’s a good thing you are not a judge, Phred.

  • Luc

    If Arne was standing in front of his 2nd floor window spanking his monkey for all to see, would he have an expectation of privacy? If his spanking was seen from an adjacent building by a child, could he argue he had an expectation of privacy? There is a reason we have window coverings, if you want expectation of privacy use your window coverings.

    The photo’s Carlos linked to are artistic, nothing more.

    • http://www.hisnameistimmy.com Tim in SF

      Don’t muddy the water, Luc. That’s not what happened, and that’s not what was photographed.

  • IceTrey

    I thought all New Yorkers did was stand around looking through each others windows with telescopes.

    • Barking Dog

      We do.

  • http://www.hisnameistimmy.com Tim in SF

    I like that you covered this, Carlos. Since this is under the category of “When Photography Is a Crime,” it shows balance.

  • http://twitter.com/eruptionchaser Mike Ross

    Reading the statute, provided there’s no nudity or sexual content, there’s no legal problem – except, perhaps, in the case of a bedroom. Living rooms, dining rooms and such are specifically excluded from the law, which appears to only concern itself with rooms where nudity or undress are regular occurrences.

  • americanexile

    Half the pictures show curtains pulled open. If people want privacy, close the curtain. There is no reasonable expectation standing next to a huge glass window, in a city of 8 million, and in a world of technology.

    • Barking Dog

      Not true. You can’t peep into my house and publish it, whetrt I keep the blinds open or not. Have to be able to see it from the public sidsewalk.

      I’ve seen the NY Post delete pics becuase they were taken inside a bar and not legal. Couldn’t be seen from the street is the rule.

      • http://www.facebook.com/people/Bryan-Broyles/100002829382304 Bryan Broyles

        Citation please?

  • http://www.facebook.com/MoGelber Mo Gelber

    I am all for public photography, including if someone is in their home and looking out their window. But in this case the photographer crossed the line by using a telephoto lens and peering into areas of apartments where people had a reasonable expectation of privacy.

  • Barking Dog

    This is illegal. Ive spent 30 years taking news pics and the law says you can photo anything that can be reasonably seen from the street.

    This guy is in a building and this is peeping, totally illegal

  • http://www.facebook.com/people/Bryan-Broyles/100002829382304 Bryan Broyles

    Wow, Osterreicher made a fundamental error. This is NOT commercial work, and no model release is necessary. Not even close. Tough to give credit to the rest of his analysis after that. Also, while I wouldn’t take these shots, I don’t find them substantially different from street photography, which I also wouldn’t do personally, but won’t condemn.

    • kylejack

      Of course it’s commercial, he’s selling prints for $7500.

      • Bryan Broyles

        And, another one. No, commercial is not defined as “for profit.”

        Commercial use is where the image is used to, at least by implication, endorse a commercial endeavor or product. Artistic use, even if profitable, is not commercial. Osterreicher should know better, he’s an attorney in this field.

        See this reply, above: Mickey Osterreicher, general counsel for the National Press Photographers Association comments on Svenson’s “commercial use without a model release…” But showing and selling art prints or even publishing a book of art photos is not commercial use that would require a model release. It falls under artistic use protected by the First Amendment. Nussenzweig v. DiCorcia. http://www.courts.state.ny.us/

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