Senate Bill S5383

                                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.