Public vs. Private By Gary Rea
When I began doing street photography, several years ago, I began to become aware of the fact that large numbers of people don't know or understand what privacy is and how it differs from being in public. Basically, privacy is a fleetingly temporary state in which you are alone and no one can either see you, hear you or interact with you in any way. The moment another person is present and, thus, can either see, hear or interact with you (or all three), you cease to be in private any longer and you are then in public, whether you are consciously aware of this or not. Thus, there is a dichotomy between private and public, in which one state cannot exist simultaneously with the other. It is a physical impossibility, in fact. No one can be simultaneously seen and not seen, heard and not heard, accessible to others and somehow accessible to no one. Despite this fact, it appears to have become lost on the vast majority of people today. For whatever reasons, millions, if not billions of people have the mistaken idea that they somehow have privacy in public and when this is demonstrated to be false by the fact that people can see them, hear them or interact with them, they will tend to react with dismay and indignation, as if they believe they have a transferable right to privacy that is absolute and that follows them everywhere they go. But, no such right exists. Certainly, one has a right to privacy, but only where and when privacy actually exists. These days, it really only exists in two places: in one's own home and in one's own mind, but even these have their limitations. For example, at home, your privacy is contingent upon a number of factors: whether or not people can see into your home from outside, for one thing. If you are "on display" for the world to see, you really have no valid expectations of privacy in your own home. Another limitation of privacy in your home occurs whenever you're on the phone talking to someone, or texting, or you're using the internet on a computer, or you're answering the door when someone comes to your home. Privacy at home is also limited for people who don't live alone. Certainly, if your home is shared with others, whether they be family members, friends or visitors, your home can be just as public a place as anywhere else is, from time to time. As for the privacy of your own mind, if you speak your mind or write down your thoughts in any medium, whatever it is you've made known then becomes public. This lack of people's understanding of privacy is made quite apparent by the number of signs and notices posted in various public spaces, from bank lobbies to hospital waiting areas, pharmacy counters, restaurants and even on public transportation, admonishing the people present in these public spaces to somehow "respect the privacy" of the other people there. It is probably the case that this originated with the incidence of electronic payment methods, such as credit and debit cards, and their use in public places, such as ATMs, banks and anywhere there happens to be a cash register present. People didn't feel comfortable using their cards at these locations because it became evident that others could eavesdrop on their transactions and, thus, steal their card numbers, passcodes, etc, and see the details of their transactions. Thus,
there has developed this sort of etiquette in which we are expected to stand in line at a "safe" distance from the person using the ATM, bank teller's counter, cash register/point of sale, etc. That makes sense, as it cuts down on the possibility of identity theft, etc. But, where this breaks down is in its extension to places in which no such transactions are taking place, such as in a hospital waiting area or, especially, on public transportation. In some cases in which there are cash registers in use (for example, at a McDonald's restaurant), it has ceased to be the case that anyone needs to type in a pass code to use their card to pay for a meal. Instead, you simply swipe your card in a card reader and no one, including you or the cashier, ever sees your data. Thus, in such instances, there is no danger posed by people standing in line right behind you (as people have done throughout McDonald's history). In the case of the hospital waiting areas, the rationale is that we should respect patients' rights to the privacy of their confidential medical information. But, it is always the case that, in these public spaces, while people may not be able to see any documents or the computer screen the clerk is looking at, anyone with decent hearing can certainly overhear any conversation taking place between the clerk at the desk and the patient, whether they are deliberately attending to the conversation or not. Typically, the distance between the desk or the pharmacy counter and where the line has queued up is no more than five or six feet, which is certainly close enough for everything being said to be heard by people not only standing in line, but by people sitting in the waiting area, as well. Especially ridiculous are the bus placards that proclaim, among the rules passengers are expected to follow, that passengers should "respect the privacy" of the other riders. Never mind that they're all using public transportation and that they're very likely to be sitting or standing so close to other passengers that they are in physical contact with each other! If you're seated beside someone who is using their "smart" phone, it is almost unavoidable that you can see what is on the phone's screen, at some point. When someone is talking on their phone, some passengers will invariably be able to hear at least one side of the conversation, and if the volume is turned up loud enough, they may even be able to hear both sides of the conversation, if they are close enough and have good enough hearing. So, what privacy do people think they have on crowded public transportation?! Getting back to my street photography, the vast majority of people, these days, seem to be ignorant of the genre, even though it has existed as an offshoot of fine art photography for over a century. Thus, it is no wonder that so many of the people I include in my photos believe that I am "spying" on them, invading their "privacy" and that I must, therefore, be some sort of undercover cop, FBI or CIA agent. Yes, believe it or not, many people here in Seattle have actually come to believe that's what I am! I have been confronted by several people, on many occasions, and accused openly of exactly that! And many of the people who have confronted me were nowhere near the scene I was photographing! In addition, many people today are so ignorant of photography they have no understanding of camera lenses and what they are (or are not) capable of. Typically, I use a telephoto zoom lens that has a 35mm equivalent focal length of 55 to 210mm, which means that it is equivalent to a so-called "standard" or "normal" lens (50 to 55mm) and is capable of extending to a medium telephoto focal length. Such a lens is adequate for photographing scenes that are across the street from me, but, at that distance, is not capable of zooming in on someone's face. Yet, even when I am photographing a scene that is a block or two away from me and including the buildings as the main elements in the scene, the people in the scene - who are nothing more than tiny stick figures silhouetted against the buildings or the sky - seem to believe that I am zoomed in on their faces! It is also the case that everyone facing the camera believes that they are the "subject" of the photograph, even though they may be a minor and peripheral element in an urban street scene and may only be
one person in a crowd of people. On one occasion, while I was photographing silhouettes of people at the top of a hill, there was a couple on the sidewalk near me who kept stopping and looking back at me as they were walking up the hill. Every time I raised my camera to shoot the scene at the top of the hill, they'd stop and look at me as if they thought I was interested in photographing them. Finally, I shouted at them, "I'm shooting something at the top of the hill! You are not in the picture!" This same thing happens with people standing beside me while I'm photographing a scene across the street or a block away. They seem to believe my telephoto zoom lens is an ultra-wide angle lens! Then there is the occasional person who asks me, "Is that a camera?" This in stark contrast to 1971, when I was just beginning to do photography and millions of other people were, also, long before digital photography and certainly long before cameras became merged with so-called "phones." At that time, people were taking photography classes, reading photography magazines and everyone knew what a camera was and had some understanding of what different focal length lenses were capable of. Returning to people's paranoia about what I'm doing, there have been occasions when I can clearly overhear people talking to each other about me while standing nearby as I'm doing my photography. These comments have ranged widely, from people shouting words of warning at each other ("Look out, it's a police photographer!," one woman shouted at a man I had photographed from behind) to the woman who - on two separate occasions in the same location - loudly accused me of being an FBI agent, even though I had not only not photographed her, but had my hands in my pockets, my lens cap on and the camera turned off, as I was merely walking down the street to get a cup of coffee nearby. On the second of these occasions, she told me that she knows seven people who will swear that I'm an FBI agent. I thought to myself, "Okay, so you know seven people who are just as ignorant of me as you are, then."). One woman said to her friend, "But, we weren't doing anything wrong!," and that observation should have been her first clue that I'm not a cop! That said, I realize that people's ignorance of who I am and what I'm doing is driven by the fact that they cannot see what I see. Not only can they not see themselves and, thus, have no knowledge of what they look like from my perspective, but they are unaware of the light and shadow that surrounds them and how it makes them appear. Even if they could somehow stand right behind me and look at the screen of my camera over my shoulder, they still wouldn't be able to see what I see, as a large part of what I "see" is based upon my considerable knowledge and experience of what the final image will look like later on after I have digitally processed it on my computer. They cannot know, either, what my intent is and, thus, have no way of knowing that the final image will be in high contrast black and white and that there is a high likelihood that they will appear as nothing more than unidentifiable silhouettes or partial silhouettes, as I intend them to. All they can see is a man pointing a camera in their general direction and, from this, plus whatever paranoid delusions, stereotypes or rumors they may have heard about me, is what they are basing their impressions of me on. People have demanded that I surrender my film (from my digital camera!), that I should delete the images I just produced and own the rights to, and people have insisted that I pay them for......something. Never mind that, had they remained unaware of the camera, they would have never known they were being photographed, in the first place, or that they haven't contracted with me to perform any services for me that I should pay them for, such as modeling. There are also many people who believe (incorrectly) that what I'm doing is illegal and that, to be legal, it requires their permission. The fact is, there is no law governing the public photography of people, places and things - at least, nowhere in most of the world. In the United Arab Emirates
(UAE), there is a law prohibiting public photography without permission, but this is also a place where people can have their hands cut off for petty theft. The Supreme Court has ruled, time after time, that no one has any reasonable expectation of privacy in a public place. This makes perfect sense, as no one can have privacy in a public place. The only exception to this is the privacy of our thoughts, which can, indeed, exist anywhere we happen to be. But, even that isn't accorded absolute legal protection because, as soon as you open your mouth to express those thoughts, or commit them to writing in any form, they cease to be private any longer and, thus, become public. Indeed, even the concept of a "private" conversation is a misnomer, as you're sharing your thoughts, words and actions with another person. It doesn't matter who that person is or how many people you're talking to, either. Any form of communication is, by its very nature, public, as it is intentionally being shared. The words I'm typing here on this page that you are now reading were originally my own private thoughts, but they became public as soon as I published them for others to read. Whether I'm writing a book intended for a large audience or an email, text message or letter intended for one person makes no difference, both are shared communication and, thus, become public as soon as they are shared. This concept people have of "private conversations" is especially flawed when the people speaking are in a public place where others can hear them. How many times have we all interrupted two people talking to each other in public, only to be scolded by them for interrupting their "private" conversation, or, in having a conversation with someone, noticed that there are others watching and listening, and even reacting to what we are saying? I can recall many such occasions, when I've started a conversation with one person and wind up continuing the conversation with someone else who had been standing nearby listening! Then there is the internet. People today are up in arms over their "private" data being viewed by people they don't want to share it with, yet they have put it where people can view it, whether they are aware of this or not. In many cases, they have even acknowledged their consent to this, via their agreement or tacit agreement with an end user license agreement (EULA) or the terms of service they agreed to in order to use a website, app or service, such as Facebook, Twitter, Instagram, etc, and thus have no legal standing to complain when what they have publicly put out there for all to see is then seen and commented on, copied, etc. Their ignorance is made plain by simply reading these agreements. Facebook's terms of service, for example, plainly states that Facebook reserves the "right" to do research on its users in any and all sources, both online and offline. I listen to a number of tech related podcasts and the topic of internet privacy is a frequent one. Yet, the IT people and tech journalists talking about it don't have any better understanding of privacy than anyone else does. While some form of data encryption may be a pretty good means of protecting one's personal information, it obviously doesn't exist except sporadically, in actual application, and the bulk of what people put online, willingly sharing it with anyone who cares to access it, is completely unprotected. Witness the recent revelation (March or April of 2019) that Facebook stored millions of people's login credentials as plain text! Similarly, people behave as if they think they are having a "private conversation" on their cell phone, when in fact their words are being recorded and can be subpoenaed by the police as evidence. Just the other day, in a podcast I listened to, it was revealed that these "digital assistant" devices, such as Alexa, Siri, etc, are being listened to by thousands of paid employees of Amazon, Apple, Google and the other companies that created this technology, and that these paid listeners are making written or recorded transcripts of whatever people have said to their "digital assistants," including the voices of their family members, coworkers and anyone else who may be heard in the background! Again, the only private thoughts we ever
have are those we keep to ourselves and, thus, the righteous indignation people are expressing about the public expression of their thoughts being somehow "violated" and that they should be protectable as "private" is absolutely ludicrous. Today's definition of "privacy" seems to mean that people are somehow expected to simply ignore you and everything you are saying or doing in public, out of mere politeness and that failing to do so is a violation of their "privacy." I have encountered this attitude on public transportation, as well as on the street. There are some people who believe their "privacy" is being violated if you merely say hello and ask them for the time or for directions, and they will let you know that this is what they think by looking at you as if you've perpetrated some grievous offense by even speaking to them at all. This misplaced anger and resentment people are feeling over the so-called "invasion" of their "privacy" is the result of their own ignorance of what privacy is. This ignorance is made especially visible in people's reactions to being publicly photographed by street photographers, paparazzi, photojournalists, etc. One day, while I was doing my street photography, I was accosted by an angry man who said that someone else had alerted him that I was photographing his daughters. He had followed me for a block in order to tell me, "They are underage!" I said, "Underage?! For what?! What is it you think I am doing, making a porn film? First of all, I didn't photograph your kids at all. I'm creating abstract street scenes and, in some cases, I'm including crowds of people." This indignation is especially comical in light of the same people's utter ignorance of and lack of indignation over the fact that we're all being surveilled everywhere we go by thousands of CCTV cameras, many of which are linked to each other and the footage from which is made available to police and intelligence agencies. For decades, photojournalists and other so-called "professional" photographers and filmmakers have shot crowd scenes on public streets and sidewalks for all sorts of uses, and rarely, if ever, has anyone been upset by this or complained about it. In fact, millions of public photos of people are published every year for editorial use by newspapers, magazines, book publishers, etc. Crowd shots are a staple of stock photography services that license the editorial use of such images. The editorial use of photos of people, made without their knowledge or consent, has long been considered "fair use" and is constitutionally protected under the First Amendment. Thus, street photography is not only completely legal, it can be published as art in books and magazines, as prints for sale to collectors, and can be publicly exhibited in galleries and museums. Any objections made by people who are photographed on the street are made in complete and utter ignorance of the long history of public photography. In fact, the oldest known photograph of a human being was made by Louis Daguerre (inventor of the daguerreotype, one of the earliest photographic processes) when he made a long exposure of a Paris street scene in 1838. During the long exposure, a man on the sidewalk stopped for a shoe shine and while standing still for the shoe shine, his silhouette was captured. So, arguably, the very first photo of a person was street photography, although Daguerre had no intention of photographing any people and wasn't expecting the result he got. Another aspect of the mistaken idea that a photographer either should or must obtain permission before photographing people in public is that the very same people who make this erroneous assertion would never declare that their permission is required to merely look or stare at them while they are in public. Of course, the rationale here is that staring at someone may be merely considered to be rude, while making a photograph is the creation of a more or less permanent record that can be duplicated and shared widely, and perhaps even sold. Nevertheless, the photographer has a constitutionally protected right to photograph anything and anyone he sees while in public. There are no laws governing this, despite the UAE's draconian edict. When the state of Arkansas's legislators attempted to pass a law, in 2013, outlawing street photography, the law was defeated by other Arkansas lawmakers who filed an
opposing bill that referenced the U.S. Constitution's First Amendment and the Supreme Court's several rulings upholding it. So, as much as people may not like being photographed in public by strangers without their consent, the fact is that no such consent is required or necessary in order for the photographer to freely exercise his right to free expression. There simply is no right to privacy in public, as there cannot be any privacy possible in public. But, the subject of the photo is free to think his own private thoughts about it, and to even express those thoughts, if he chooses to. He just doesn't have any right to curtail the photographer's rights. Where private property is concerned, there is also no law that prevents a photographer from photographing a building, including its interior. However, the owner or the owner's agents can certainly demand that the photographer cease and desist and leave the premises, under threat of calling the police to have the photographer arrested for criminal trespass. Also, while there is no law preventing the creation of the image, nor any governing its publication, it is, nevertheless, usually the case that publishers, ad agencies, and other users of photographic images will require a model or property release for the photos before they will buy or use them. But, this isn't a legal requirement. Rather, it is merely to protect the publisher from any lawsuits that may arise on behalf of the property owner, or on behalf of anyone whose likeness has been reproduced without their permission. In fact, these days, it is very rare that an image will be used commercially without some form of approval from all parties involved. Again, the exception - which is constitutionally protected - is when an image is used for editorial purposes, which can include its publication and exhibition as fine art.