Street photographers, like snipers, pride themselves on stealth. Camouflaged in nondescript clothing, they wander the streets undetectable, armed, and on the hunt. When they find their mark, they act quickly. As the famous twentieth-century street photographer Henri Cartier-Bresson described: “The creative act lasts but a brief moment, a lightning instant of give-and-take, just long enough for you to level the camera and to trap the fleeting prey in your little box.” While methods of “trapping prey” vary from shooter to shooter, the mission remains the same—staying as covert as possible and catching an unknowing subject in a candid pose. In the formative years of street photography, Cartier-Bresson concealed himself by wrapping a large handkerchief around his camera and pretending to blow his nose while discretely taking a picture. He also covered his camera in black tape to conceal any shiny parts that might give him away to his subjects.
Today’s street photographers are armed with a new generation of weapons that hardly need concealment. The rise of miniaturized and digital technologies has taken street shooting to a whole new level. In a world where companies compete to make the smallest, most inexpensive cameras, surreptitious photography runs rampant. For example, cell-phone cameras and “dime-sized spy cameras” make it possible for photographers to shoot their subjects from virtually any angle without detection. However, as technology advances, so does the potential scope and harm from photographic invasions of a subject’s privacy.
One of the most disturbing products of these developments is the birth of “upskirt photography.” As its name suggests, upskirt photography involves taking pictures of women up their skirts. There are currently over one hundred websites featuring upskirt images, indicating just how in-demand the product is. This form of unauthorized photography can have devastating effects on subjects. An upskirt photograph draws attention to a private aspect of a person’s life that would not have been seen by the naked eye and that the subject likely would not have consented to put on public display. In this regard, upskirt photographs infringe on basic precepts of human dignity. They also often cause outrage, mental suffering, shame, or humiliation for their subjects.
Despite these severe injuries, an individual photographed in public has nearly no recourse under current civil law. Street photography thrives because an individual has no right to privacy in public places. Instead, the law protects the photographer, not the victim.
Civil law must keep pace with technology and break away from its current conception of privacy in public places. Upskirt photography will persist until the law provides a remedy that serves as a sufficient deterrent against the behavior. Deterrence, though, cannot be achieved when courts cling to conventional thinking that invasions of privacy cannot occur in the public sphere. New and problematic forms of street photography necessitate a reexamination of photographic invasions of privacy.
Part II of this Note provides a brief history of the right to privacy, highlights specific characteristics unique to photography that intensify its threat to privacy, and introduces the conventional rationales for denying individuals a right to privacy in public. Part III surveys photographic invasion-of-privacy cases and examines the classic rationales for upholding photographers’ rights to shoot subjects covertly in public. Drawing upon the concepts discussed in Part III, Part IV then proposes that the tort of battery should be expanded to encompass photographic street shootings. The tort of battery protects an individual’s dignity from intentional invasions. Accordingly, the interests at stake in street shootings fit squarely within the interests battery seeks to preserve. Part IV further argues that the “contact” requirement of battery can be satisfied either by actual contact between the photographer and the victim (or the victim’s clothing) or by a nontraditional theory of contact via light particles. Characterizing street shootings as a form of battery eliminates many of the impediments faced by plaintiffs in photographic invasion of privacy claims.