Expectation of Privacy
What constitutes public and private areas, and when you have the expectation to
remain private is increasingly in question when we are under greater and greater surveillance. I must
quickly point out here that I am in the US, so any legal or cultural differences in other countries will not
be addressed, since I am not familiar enough to make an informed statement. One of the most
consequential issues in the US is that most people simply do not realize the level of surveillance to which
they are subject, from private cameras in commercial and residential spaces to rapidly increasing state
and municipal installations (e.g. Flock). A large part of the public is unaware how interconnected
these systems are, and how actively utilized they are by business, government, and law enforcement in
order to both track and predict an individual's behavior.
There is a difference between being seen and being tracked, as well as between
the actions of an individual, fellow private citizen and the coordinated institutional efforts of an
organization. Being seen in public in unavoidable, but being
tracked is something that should be fought against.
For the purposes of this post, I'll set aside the fact that we are also
under constant watch in our own private homes and work places (but that is indeed an important
issue that bears attention and discussion). When someone walks out of their home and ventures into
publicly accessible spaces, there is simply no reasonable expectation to privacy, no expectation to
not be seen. Open areas, generally available without restrictions or fees, thoroughfares such as sidewalks
and roads, and that which is visible from such vantages are all considered public. Expecting
privacy in these places is frankly unjustifiable, and trying to act upon that expectation is tantamount
to laying claim on a space that belongs to everybody.
Confrontation
Though people are always being filmed and photographed by such surveillance tech,
when you get close enough to take someone's photo with a handheld camera, it can be startling or even
seem aggressive (especially when using flash). You can talk until you're blue
in the face about how their likeness is already being harvested by innumerable cameras all around them,
but there are key differences that change the context of the interaction. The truth of the matter is
that taking a stranger's photo in public is a type of confrontation. Surveillance cameras often go
unnoticed, either by being obscured or simply being farther away from the subject. When you frame up a
photo with a 50mm or wider lens, you'll usually be in (or at least close to) someone's personal space.
The US has a culture of being on-guard with such established practices as
widespread gun-ownership (especially open-carry) and stand-your-ground laws. Many citizens here
are ready for and even expecting a violent confrontation, ranging anywhere from harsh words to
lethal force. I don't have evidence or any studies to offer up, but I believe this sort of paranoia has
actually increased since 2020, in the wake of the COVID lockdowns, due to both social and economic
strain.
Being in someone's personal space and doing something unexpected like raising up
a camera to your face in front of them can be construed as a threat. To a person who may already be
jumpy and anxious, or even in a violent mindset, such a perceived threat can cause them to lash out.
This has certainly happened to me on multiple occassions, though never to the point of a physical
altercation. I've been yelled at, insulted, accused, threated, all for taking photos
in an indisputably public space. These people felt they had been wronged and were reacting accordingly.
Legally, I did nothing actionable, but from a moral or ethical standpoint, the matter
is certainly open to debate. I did no physical harm, I said nothing denegrating, but I did make the
person uncomfortable. Should people have the expectation to be free of confrontation and discomfort in
public, and is causing discomfort a form of non-physical violence? These are valid questions that merit
discussion, and I have had people (whose opinions I do value) tell me what I'm doing is wrong. However,
I simply disagree.
Documentating What I See
As I walk around in public, I believe I have the right to record and document
what I see. It is a way of preserving my own experience, my life in the particular time and place that I
am living. Seeing such photos allows us to put a time and place into context. How do people dress,
how do they get around, what do street signs look like, what is being advertised on that billboard,
what was the view before that building was there? These mundane details bear recording. We can see how a
young boy proudly carries wine
in 1950's Paris. We can take a peek at New York City
subway graffiti
in the 1980's. We can get a taste of late 90's
Harajuku street fashion. These
scenes of people in public make up the visual inscription of our ever-evolving societies. They're
important, they're interesting, they're the proof of our lives on Earth.
Now, I am not insisting that my experience and documentation thereof is of much
significance to a wider audience, but it is my life, and it is important to me. My own
photography has personal value, and I greatly enjoy the opportunity to look back on what I've
encountered. It's like a visual journal.
Where Do These Photos End Up?
I would guess that most people's primary concern is where the photo of
themselves is going to appear online. It's what I get asked about most often, followed by
wanting to see the photo itself (a request I can almost never fulfill on the spot, since I primarily
shoot film). They want to know if they're going to be presented in a bad light, whether the image
is humiliating or functions as an accusation of some sort. People don't want to feel like they're part
of some freak show, and not having editorial control over their own likeness is understandably
concerning.
Personally, I'm not widely active on social media, and the only places a photo I
take can appear online are here or on my Flickr;
either option is unlikely to be seen by more than a handful of people. However, for someone with a much
larger audience, there's not only the opportunity for the photo to be seen, but also for the photo to be
spread (via reblogging, sharing, etc.), so I can certainly understand the worry.
If someone requests, I usually offer to email the photo to them, but if a person
demands to see the photo immediately or to delete it, I explain that it's film, show them the lack of a
screen on the back of my camera, and that I'm not on social media anyways. At that point, it's usually
enough for them to accept that I'm just some idiosyncratic weirdo, and we'll leave it at that. However,
it could be argued that the more ethical approach would be to make strides to restore their agency in
the matter.
You could go through the hassle of carrying model release contracts
with you and offer them up to people you photograph, but this is both not necessary for personal/artistic
work and opens you up to further liability if you use the photo outside of the contract's explicit
wording. Once you bring a contract into the mix, you have documented intent and permission. Having that
piece of signed paper opens the door for a lawyer to make your life a nightmare, even if the ruling
eventually comes out in your favor. Simply put, if you're not shooting a commercial gig,
don't involve release forms.
A more viable option, though still putting increased burden on yourself as the
photographer, is to maintain an open line of communication and treat the subject as your editor. Before
proliferating the photo, you can reach out to the subject and ask for approval. This puts control of the
person's likeness squarely in their hands. So why not do this? Most people do not understand
the distinction between likeness and image. You, as the photographer, created the
image. You composed the shot, own and operate the equipment that records the light onto a given
medium, and took the time to make edits. You, as the photographer, have already invested resources into
the creation of that image, and quite frankly, a person appearing in that image has
about as much ownership of it as a piece of fruit in a still life painting would have of said painting:
that is to say, none.
A few times, I have had people demanding payment for their likeness.
This is absolutely untenable, and you must not capitulate. That is simply not the relationship between
subject and artist/documentarian/whatever-you-call-yourself. This attitude may seem harsh or even
self-important, but it's critical that this be a hard line. It is all but impossible that a single image
of a person will pay your bills (unless your name is Steve McCurry), so don't go out of pocket
just to take a photo; this shit is already expensive enough, as is!
What I Won't Photograph in Public
It sounds like I'm making the case that everything one sees in public is fair
game, but there's a few subjects I personally will not photograph. I'm not demanding that everyone else
follow my choices (what right do I have to do so?), just that there are subjects and approaches
that should be avoided for practical or ethical reasons.
People under systematic distress, like those who are homeless, are subjects I
won't seek out to photograph. Firstly, I can't think of anything more cliché, but the real heart of
the problem is that it's targeting someone who is already quite miserable. If some middle- or upper-class
guy doesn't like his photo being taken, that's one thing, but someone who does not even have access to
privacy is another matter entirely. Of course, there is certainly a need to address such populations,
and documentary work to bring awareness to such matters is a good and noteworthy pursuit, but that's not
what I am working on, so I leave that to someone else entirely.
Additionally, while I
have taken photos, through a window, of someone sitting inside a business, I won't take a similar
picture of someone inside their home. Pointing a camera at an interior room, even from the street, is
certainly skirting the line of privacy.
It's not just about subject and location, though; method plays a vital role. Here
is where I should mention Bruce Gilden, and
if you have any passing interest in street photography, you already know the point to be made. I
sometimes use flash and get pretty close with a wideangle lens, but I try not to be agressive about it.
I don't want to jump out and ambush people. It's a fine line,
differentiated by intent. I'm not trying to humiliate my subjects, and I don't regard them as "characters"
or freaks. Flash helps to dipict a subject in a dramatic way, adding contrast and dynamism. I think it
makes people look cool and glamorous! What I won't do is use the technique to blast people in an
unflattering light or crank the contrast up to enhance skin blemishes. I think choice of subject is as
big a part of this, but how that subject is portrayed can be cruel if one goes about it a certain way;
that's what I make sure I avoid.
Why Bother?
At this point, it may seem that taking photos of strangers is more trouble than
it's worth. Why point a camera at people that may react in volatile way? Why not go take pictures of
mountains or birds, instead? Why not just limit it to people you already know? I know it seems like I'm
bending over backwards, trying to get ahead of criticisms here, but I just want to clarify the
boundaries and intent behind taking these photos.
As for motivation, there are two leading factors at work. First, and most
selfishly, trying to compose an effective image on the spot is a fun challenge. You may be able to
scout ahead with the location, such as an intricate, criss-crossing collection of stairways or
the angles of light and shadow projected by skyscrapers, but catching a person in a dynamic pose
that complements the scene or freezing the moment of an intense emotion filling someone's face demands
awareness, reflexes, and persistence. When you just know you've gotten a compelling image
immediately after pressing the shutter is an addictive rush, not unlike winning a hand of poker!
The second motivating factor is more of a slow, but constantly burning
compulsion, one that is an ever sounding siren song. I want to create meaningful art. It doesn't have to
mean much to anyone other than myself, but I won't be satisfied until I really and truly feel like I've
created a body of work that is good enough. I don't think I'm anywhere close to having
accomplished that yet, and I suspect I will die never feeling like I'm done.
Currently, I am working on putting together a book called
Hello (I've got the photos selected, though trying to learn both
book layout and InDesign), but once that's done, it's not like I'm going to stop. I want to make more
and more books. So I'll keep snapping, and since people are the most compelling subjects to me, I'll
keep photographing strangers in public.
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