Prohibits the recording of visual images of a person having a reasonable expectation of privacy while within a dwelling, when such images are recorded by another person outside the dwelling

BILL NUMBER:S5383

Title of bill

An act to amend the civil rights law, in relation to capturing the visual image of a person within a dwelling when such person has a reasonable expectation of privacy

Purpose

To create a zone of privacy around the home which will prevent people from capturing and using the image of the residents within.

Summary of provisions

Section 1 - Amends § 50 of the civil rights law to include a prohibition on knowingly capturing the image of another person within a dwelling, when that person has a reasonable expectation of privacy. A person in violation of this section will be guilty of a misdemeanor.

Section 2 - Amends § 51 of the civil rights law to permit a person whose image is captured in violation of § 50 may maintain an equitable action, and may also sue for any damages incurred.

Existing law

Under the existing law, there is no protection for person's in their home. Images captured of people in their homes may be used in the course of artistic work. There are prohibitions on using another's person for adverting purposes.

Justification

In Foster v. Svenson (2015 N.Y. App. Div. LEXIS 3028), the plaintiffs sued the defendant for taking photographs of their children through their apartment windows and offering them for sale. The defendant Arne Svenson, a prominent photographer, using a telephoto camera lens, began a project where he covertly took pictures of his neighbors in their homes. Svenson went to far as to darken his own home, hiding in the shadows as he took pictures. After months of this behavior, the released a photograph series entitled "The Neighbors". In the promotional materials for the exhibit, the defendant stated that for his "subjects there is no question of privacy; they are performing behind a transparent scrim on a stage of their own creation with the curtain raised high." The plaintiffs were unaware that they were being photographed. Photographs of the plaintiffs included their son in his diaper, daughter in a swimsuit, and the other showed plaintiff holding up her daughter. The plaintiffs sued under Civil Rights law §§ 50 and 51. These sections guarantee a right to privacy. The defendant stated that his use of the images constituted art work and therefore was not included within the prohibition on using another person's image for "advertising or trade purpose". The court after extensive analysis concluded that the images were works of art, which was protected by the First Amendment. However, the court stated "undoubtedly, like plaintiffs, many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case. However, such complaints are best addressed to the Legislature."

This bill seeks to create a zone of privacy around the home. As technologies advance, it will become easier for people to surreptitiously record and capture the images of their neighbors. This case illustrates the glaring absence of protection that people expect within the confines of their home and the bill seeks to remedy

that, by protecting people in their homes from uninvited surveillance no matter the motive.

Legislative history

New Bill.

Fiscal implications

None.

Effective date

Immediately.