Peeping tom or artist: Whose derriere is it, any way?

Does secretly photographing your neighbors inside their homes violate their privacy? The answer depends on which side of the lens you’re on.

Here’s a quick personality quiz. Let’s say you’re taking an evening stroll through your neighborhood. You walk by a house and you see a member of the opposite sex undressing in front of an open window. What do you do?

Do you avert your eyes and move on, or do you stand there and wait for the show to be over? Do you ring your neighbor and politely suggest they keep their curtains drawn? Or do you hide behind a bush, whip out your telephoto lens camera, take a series of shots, put them on canvas, and sell them for thousands of dollars a pop?

If you’re New York City art photographer Arne Svenson, you probably went with option C. And now your neighbors are hopping mad.

Svenson is in the middle of a privacy kerfuffle over shots he took of his NYC neighbors from inside his apartment using a powerful telephoto lens. These are now on display at the Julie Saul Gallery in Manhattan with price tags in the $7,000 range. Many of the neighbors, who didn’t know about the photos until news coverage of the show, are incensed. 

Here’s the shot most of the coverage seems to be focused on (no pun intended):

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As my old friend and colleague Harry Miller jokes, it offers an entirely new twist on the concept of Rear Window. There’s also a silhouette of a very pregnant woman, people lounging in bed, a woman with her hair wrapped in a towel who apparently just got out of the shower. They’re all very intimate, though not in a sexual sense. No one’s face is directly visible.

The photographer’s rationale:

“For my subjects, there is no question of privacy,” he said in a statement accompanying the exhibit. “They are performing behind a transparent scrim on a stage of their own creation with the curtain raised high. The neighbors don’t know they are being photographed; I carefully shoot from the shadows of my home into theirs.

“I am not unlike the birder, quietly waiting for hours, watching for the flutter of a hand or a movement of a curtain as an indication that there is life within.”

Right. He’s just a birder. Only instead of “birder” substitute the word “perv.”

People who perform on stage choose to do so and they’re usually aware of it; these people didn’t even know they were being photographed, nor did they give permission for these shots to be used. Some of the residents of that building told reporters later they didn’t mind, but the time to find that out is before you take the photos, not after.

Svenson adds that because he didn’t reveal anyone’s face or name in the photos he hasn’t violated anyone’s privacy. If this argument sounds vaguely familiar, it’s because that’s the same argument used by the online tracking industry; we’ve gathered the data anonymously, so no harm no foul.

Except that it’s relatively trivial to work backwards to figure out who these people are. We know, for example, that the subjects of Svenson’s photos live in the Zinc Building in Tribeca. A simple Google search provides the address; a search of NYC tax records will show who owns every unit in that building. (That database is down for the moment, so I can’t tell you how specific that information gets.)

We also know Svenson’s address, thanks to the New York Post. So we can look up his tax records, see what floor he lives on, and what units would likely be visible from his windows. We can come up with a pretty good idea of exactly whom he was shooting – and if they have any digital footprint on Facebook, LinkedIn, or Google+, a lot more than that.

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This is a photo of Svenson, taken by the Post. We don’t know what his hind quarters look like. That’s probably a good thing.

Why should anyone outside the benighted confines of Manhattan give a damn about this? Because it strikes at the heart of what’s wrong with the ongoing debate over privacy and what constitutes a “reasonable expectation” of same.

The courts have long held that privacy is relative, based on things like location and social norms. You expect to have more privacy in your home than in your car, for example. You expect more privacy in a locker room than you do on the beach.

This has very real implications. If you’re pulled over by a cop, he doesn’t need a warrant to search your car, the way he would if he wanted to search your home. He just needs a good excuse, and those are easy to come by.

Your boss can put surveillance cameras in the hallways of your office, but not the bathroom. If someone took photos of your bikini bod at the beach, you might be infuriated, but you wouldn’t be able to do much about it. If the same photographer took snaps of your bikini bod in a locker room, you’d be able to have him arrested. And if he posted those to a Web site, you’d probably be able to sue.

So if you live in a swank New York condo, and you’re just going about your day, does someone have the right to photograph you, post those images in public, and sell them for thousands of dollars?

To me the answer is obviously no. But I’ve been reading reactions to this online, and I’m amazed (and appalled) at the number of people who say the swanky New Yorkers are to blame because they didn’t draw their curtains.

So, just to be clear: The fact that I open my curtains is not an invitation to photograph me. My desire to let light in stops at letting in peeping toms. Are y'all with me on this?

There is also a fundamental difference between being able to see something and the act of recording it. This is where technology changes everything. Svenson’s technology was a camera with a telephoto lens, but it applies just as easily to Google, when it sent Street View Vans zooming through the world’s cities siphoning off data from insecure WiFi networks. It applies to surveillance drones, which can hover outside the windows of your apartment complex and capture your life more easily than someone hiding inside an apartment with an expensive camera.

It applies to police who want to track the location of your car from hundreds of miles away because it’s “in public” and thus visible to passers by. It applies to thermal imaging cameras that can gather heat signatures through the walls of your home and backscatter scanners that can peer through your clothes as if you weren’t wearing them. It applies to Google Glass and other products that allow for surreptitious random image and audio capture in public places. 

Because the technology for capturing this stuff is now cheap and easily available, does it mean I should simply expect it to happen? Has my right to privacy in my own home evaporated because technology allows someone inside, even when I have not?

I don’t think so. I don’t believe anyone else should think so, either. So we need to revisit the notion of what privacy means, and what constitutes a “reasonable expectation” in the surveillance age.

And if you’re planning to publish a picture of my derriere, expect me to sue yours.

Got a question about social media or privacy? TY4NS blogger Dan Tynan may have the answer (and if not, he’ll make something up). Visit his snarky, occasionally NSFW blogeSarcasm or follow him on Twitter: @tynanwrites. For the latest IT news, analysis and how-to’s, follow ITworld on Twitter and Facebook.

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