It’s OK now for someone to shoot photos of you through your apartment window? NY court leaves a dark picture of privacy imperiled

When the first court ruling came down in 2013, this came down, with signature restraint, from The New York Post: “Judge backs the right of creepy Tribeca artist to photograph people through their windows.” Two weeks ago an appeals court upheld that decision, and The Hollywood Reporter announced: “Artist who spied on neighbors with telephoto lens beats privacy claims.”

Welcome to the affair of Arne Svenson, a fine arts photographer of considerable skill. He spent a year using a 500mm telephoto lens he got from a birdwatching friend to shoot thousands of pictures of his unwitting neighbors through the windows of their plush apartments across the street from his in Lower Manhattan. When some of Svenson’s photos were offered for sale at a high-end New York gallery in 2013, he was sued for, among other things, invasion of privacy.

Although they’re described in some quarters as “voyeuristic,” there’s nothing salacious about his pictures. They’re tasteful, and they’re cool. They’re photos of legs and of dogs, of reclining figures, of shadows and profiles, of children shot from behind, of blurred couples interacting and, perhaps, arguing. By and large, you can’t tell who the people are, and that anonymity, it’s suggested, universalizes the images. They’re framed by the crisp lines of their living-room windows, and the results look very much like art.

“I find the unrehearsed, unconscious aspects of life the most beautiful to photograph, as they are most open to interpretation, to a narrative,” Svenson said in 2013. “A dramatic moment has the single power of action, but tiny, linked moments are how we mark time on this earth. I am much more interested in recording the breath between words than I am the actual words themselves.”

So? How much of that matters? Here those people are, inhabiting “the breath between words,” tending to household pleasures, fussing or napping, scolding their kids, eating their prunes or flirting with their mates or scratching their butts, and some faceless guy across the way using some mid-tech peephole captures these images—and decides how much of what’s captured should be shared with (and peddled to) a vast audience of strangers. Don’t expectations of privacy matter? Does artistic flutter trump personal sanctuary?

The New York courts, applying a century-old law intended to keep an individual’s likeness from being used in advertisements without consent, decided that state privacy protections had to yield to Svenson’s expressive freedom under the First Amendment. That’s because a huge “newsworthy and public concern exemption” to privacy safeguards had been carved out, and although there’s nothing remotely newsworthy about Svenson’s images, it applies to literature, movies and works of art as well.

Now, newspeople are used to basing their right to ignore primordial privacy claims on such matters as where the photographer is shooting the picture from (a sidewalk, e.g.) or where the figures being shot are standing (if they’re in a public park, tough luck, even if their snuggle is plainly a private moment) or, most persuasively, whether the image is one of public significance (the commission of a crime, for instance.)

But Svenson’s claim is a much bolder one. It’s that the transformation of the intimate moment into a public commodity is one that the artist is empowered to perform, and the resulting annihilation of privacy is an acceptable consequence.

There’s good reason to suspect that his work is only another step toward wider acceptance of what’s called “surveillance art,” incorporating feeds from the web cameras that increasingly infest the public square. As commentator Pete Brook notes, the neighborhood where Svenson and his quarry reside had, in 2005, some 1,300 closed-circuit TV cameras.

How closely guarded are the recordings made with those cameras? What about the iPhone pictures and videos made by the people across the aisle in the restaurant you just left, which they may well post on Facebook?

And the license-plate videos recorded by public authorities—and kept, we’re told, for 30 days only—or the recordings made by street-lamp cameras and fed through facial recognition databases and, because they’re government documents, freely available to the public?

Which means available as raw materials to artists like Svenson for their montages, wry installations, and ironic videos about the ineffable beauty and fragility (and demise) of the personal sphere.

To be fair to the New York courts, the pro-Svenson ruling ended with an appeal to the legislature to toughen the state’s privacy statute, which the justices said gave them no choice but to acquiesce before “this type of technological home invasion.”

But you have to wonder how passionate the support is for that kind of legislative remedy, and whether privacy campaigners, increasingly, are facing off against a powerful movement for ever more universalized accessibility—championed not so much by artists, but by marketers and cops of all kinds—a fight the privacy fans are destined to lose.

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