Years ago in Omniveillance, I wrote at length about privacy in public. To illustrate the boundaries of this privacy, I discussed the difficulty of the privacy torts, would offer protections against being recorded through a window, but not offer protections against being recorded while sitting on a balcony. There was a stark difference between *inside* and *outside.*
Questioning whether a reasonable expectation of privacy exists solves several logical problems inherent in limiting privacy protections to a private location. To illustrate this conflict, if a person sits on his balcony, or next to a window in plain view of the public, the intrusion upon seclusion tort would probably protect him. Conversely, if a person leaves the confines of his home and climbs to the top of the tallest mountain to be alone, the intrusion tort would not protect him because it is not considered private property. Furthermore, another distinction must be drawn between different notions of “public.” The middle of Times Square and the middle of a forest may both be considered public property, but the relative expectations of privacy in these locations are worlds apart. Both an individual and society would recognize that a person meditating alone at the top of a mountain or reflecting with nature inside a park could have a reasonable expectation of privacy, thus satisfying the two prongs of Katz. But the same cannot be said for someone sitting on his balcony facing a busy street filled with reporters. Nonetheless, the privacy torts identically treat both of these dissimilar situations. This goes against reason.
New York, which lacks the intrusion upon seclusion tort, is not so bound. And the effect of that exclusion was evident in a recent case involving photographing minors with a telephoto lens through a window.
A Manhattan judge ruled this week that artistic freedom trumps the rights of parents who don’t want their kids secretly photographed through the windows of their homes.
Judge Eileen Rakower tossed a lawsuit brought by two parents against a Tribeca artist who snapped pictures of their children through their apartment windows as part of a controversial exhibition this year.
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Making use of their floor to ceiling windows, he captured his innocent subjects engaged in a host of mundane activities, from cleaning the floor to playing with their kids.
But controversy erupted after Svenson’s models learned that they were being photographed without their knowledge — and that the images were being exhibited and sold for up to $10,000 each.
Matthew and Martha Foster sued Svenson — who likened himself to a “bird-watcher” — after realizing that their kids’ pictures were being used to promote the exhibit in California and at the Julie Saul Gallery in Manhattan.
Arguing that his behavior “shocks the conscience and is so out of keeping with the standards of morality in the community,” the couple asked the court to bar him from showing or selling the images.
They also demanded that he turn over all of the images not being used in the exhibit.
But Rakower ruled Monday that Svenson’s artistic freedom superseded their privacy concerns, and dismissed the case outright.
“The value of artistic expression outweighs any sale that stems from the published photos,” Rakower wrote.
The opinion is here, and focuses exclusively on two sections of the New York Code, which roughly approximate the appropriation tort. Because art is so important, the First Amendment trumps the right of privacy of the children.