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

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.

About Carlos Miller