'Street Shootings: Covert Photography and Public Privacy' by Nancy Danforth Zeronda in (2010) 64(4)
Vanderbilt Law Review 1131 [
PDF] comments that
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.