Riayn Fergins


Last September, California passed Bill 606 ruling it a punishable offense to photograph and publish the image of high-end miniature poop-dispensing burp machines™, also known as celebrity children.

While the protection of the innocent, celebrity progeny or not, should have always been a given, what about privacy rights for us lay folk? On our day-to-day commutes, we enter the paparazzi den and don’t even realize we’re being ravaged. The celebrated at least get the warning of flashbulbs, rage-baiting conversation, and a readily identifiable skuzzbag uniform.

Our foreign press are clever stealth operatives with guerrilla shutter tactics. Their paps are mercenaries; ours can’t be courted for publicity nor bought off prior to posting our mugs. They’re immortalized in lenses priced upwards of $10,000, we settle for smartphones, iPads and other multitasking devices. Celebs can point to the enemy and draw a dividing line; we can’t. Maybe we can, if we draw the line down ourselves and sever the duality we rarely admit: we’re both sleazy jerks and victims who violate with and are violated by our cameras. On the subways, in the streets, at cafes and bars, we live a seamless Jekyll and Hyde existence as predator and prey, capturing and being captured.

The dilemma of defining and enforcing the bounds of public privacy in a world with constant technological advancements brings to mind one of my first ventures on the L train.

After years of living in my depressive Midtown bubble, intimidated by the interlocking subway system and willfully confused by maps, I moved to Bushwick for a rebirth with determination to embrace what makes New York … um … New York. This meant riding the rails and committing the lines to muscle memory. The L was a great home base, as it didn’t take long for me to learn its rhythm and passenger archetypes. Periodically, a man, whom by all indicators was homeless and troubled, would ride during daytime hours and randomly break into song—off the cuff classic renditions with his interpretative take. One afternoon in a car with no more than five people, he belted out Rudolph the Red Nose Reindeer.

Though most appeared to accept his withdrawn stare and failure to acknowledge an audience as a lack of lucidity and, thus, not a performance to exploit, one youngin missed the memo. Seconds into the song, a late-teen with post-goth spunk whipped out her cell phone to record him. Steadfast on her take, she snickered at each of us with eyes roaming for complicity. From what I could see, no one gave it to her, and I made certain to give pursed lip disapproval until approaching my stop, where I confronted her.

I walked over. She smiled and turned the screen for me to scope her directing skills. In that moment, I questioned how hard to come down on her. Our age difference indicated a technology etiquette gap and perhaps a different expectation of privacy. I went easier than planned, simply saying,

“You know you shouldn’t do that. He’s not well.”

“So,” she snapped back, “how do you know if I’m not well? How do you know you’re not well? We could all be unwell.”

As profound a budding philosopher as she was, her response and behavior revealed it was his very illness and perceived status giving her the sense he was acceptable to exploit. I can’t blame her. Based on our regard for the homeless and otherwise disenfranchised, she had a reasonable expectation for society-sanctioned cruelty. If he was a will-breakdance-for-food or melancholy mariachi performer, she would not have felt the need to solicit for accomplices, as it is understood street performers relinquish their right to ban photography. However, a person’s mere existence, no matter how captivating to the beholder, shouldn’t be a free performance to document.

As New Yorkers who, I’m going to presume since we are Bushwickians—insensitive gentrifiers and stubborn natives alike, are the 99%, our lives are lived publicly. Most of us don’t have the luxury of a driver to take us wherever we need to go. We daily rely on public transit to wield us to our magical bill-paying factories, a leveling and unifying ritual bringing together all kinds, but often wrought with anxiety for many. At eight or nine or ten in the morning or even three in the afternoon, I’m not ready to watch you pick your nose, smell your inconspicuous farts, get molested by your backpack, or have you spread your legs so wide an emaciated toddler couldn’t sit next to you—while we’re on it, you don’t need that much space between your legs, I don’t care what you think you’re working with, NO ONE needs that much space! Suffice to state, I’m not always in a place to muse the wonders of God’s or an amoeba cell’s creation. I’ll cop to these spoiled brat gripes because I know, though I’m the jerk confessing, I’m not alone in these sentiments. Also, I’m keenly aware you don’t care for my grotesque habits either. Even with our collective yuck! factor, New York streets are and probably always will be a runway to all who walk, and the subway a stage filled with reluctant actors retreating into the world of their Kindles set to their headphones’ [insert ur fave band here] score. It is hard to accept how necessary, damn near unavoidable, places of public solitude are constantly tapped for exploitation without so much as a bat lash at the domino effect beyond an eager finger click.

Sure, one can deduce the girl videoing the unwitting cantor was an idiot and certainly not reflective of most, so don’t finger-wag and preach like this is a real problem, Miss. As much as I’d love to agree, with rapid advancements in technology and the percolating belief we all have something to show and tell, I don’t. So, I’ma get my finger-wag on.

Thousands of blogs and networking pages are dedicated to publishing photos of strangers for the purpose of either ridicule or admiration. For the virgin voyeur, New York photographers Adam Marelli and James Maher offer online tutorials on overcoming first time jitters and psyching out subjects into believing either a) the background is being shot, or b) the photog is an annoying tourist also shooting the background or a decoy friend. However easy it is for the reasoned to determine an “unwell” person whispering away demons a poor subject choice, many fail to consider a covert population in dire need of protection through privacy: victims of domestic or interpersonal violence. A substantial segment of this population relies on not being found by their abusers. The whole of this population is in pursuit of autonomy, often sought through the power of consent.

We don’t know much about domestic violence.

Why should we? Though as old as sex, the topic is not a part of mainstream heavy rotation. Perhaps, every so often, we belabor a Tinsel Town couple with conjecture and disapproval over the survivor’s decision to return to the abuser, or even punish and then congratulate ourselves by taking away the victim’s hard earned, unrelated multimillion dollar cosmetic endorsement. Because, you know, the victim’s failure to break free of an abusive cycle will prevent customers from choosing their brand of drugstore blue shadow—price and a pretty picture haven’t a thing to do with it! Unless we are the unfortunate inhabitants of an abusive environment, work in social services, shelters, or domestic law, or volunteer as advocates, access to literature and hearing first hand accounts is not readily available. Since it isn’t a part of obligatory adolescent discourse—don’t talk to strangers, what you’re having is a wet dream, here is your emergency kit for your first period, promise you’ll ALWAYS use a condom, oh! and by the way, this is how to recognize if your partner is grooming you for abuse—the desire to understand may not be there.

If we don’t live or work in that world, we don’t know victims tend to return to their abusers seven times before finally leaving. We don’t understand how, a bitter pill to swallow as it is, love covers a multitude of faults…once falling in it. We have cinematic gems depicting the most heinous forms of physical abuse, but don’t give their due to verbal and emotional attacks that bruise just the same. We have lame subway posters that further confuse with soundbite checklists to help us determine before the train arrives whether or not we or someone we know is in an abusive relationship. We think a honey moon phase is a couple’s lust-drunk ew, get a f***ing room time before the gaga fades, not the celestial calm before the storm. Those in the trenches are aware but, more importantly, realize no two relationships are the same. Individuals never cease to provide new scenarios and nuanced reasoning that obliterates textbook theory. One notion unanimously agreed upon, regardless of the scenario, is the importance of safety planning during and post the relationship.

Safety planning is a toolkit on which a victim relies to: stay as safe as possible in a dangerous relationship, leave as intact as possible, and repair in the life thereafter. Both the National Domestic Violence Hotline and State of New York Office for Prevention of Domestic Violence stress the importance of technology safety in their guidebooks. In addition to interpersonal abuse, many survivors endure stalking and intimidation via technology. From having GPS trackers placed in cars, jewelry, and phones to surveillance cameras hidden around the home, many abusers extend the reach of their menace through misusing hardware and applications. Extricating oneself from the invisible big brother grasp is a major feat for a victim and sore loss for an abuser. So sore, it isn’t unheard of for a rematch to take the form of cyberstalking. The State of New York, in fact, begins its Technology Safety chapter warning abusers are “determined and creative” when it comes to manipulating technology for control of their victims. If they can’t record and document them, they’ll find who is.

I sat down with Anna Diamanti, Esq., director of the Family Law and Domestic Violence Unit at South Brooklyn Legal Services, to discuss the exposure risk and impact of publishing non-consensual photographs. The Family Justice Center contingent of SBLS is the nation’s largest resource for survivors. At 350 Jay Street, a block away from the Jay Street/Metro Tech MTA stop, it boasts a multi-lingual mashup of SVU district attorneys, victims’ rights non-profits, advocates, counselors, and a massive children’s play arena—containing a vast picture-book library, arts and crafts, legit playpen, childcare specialists, and a therapy dog. Being a director for this operation, Ms. Diamanti was the best source with whom to tackle the subject. Throughout our talk she stressed abusers are “manipulative” people who “find ways to get the information they want,” but ultimately believed a survivor’s image being found on a location-specific blog by an abuser a more serious threat in small towns than a metropolis like New York.

Fair. Fine. Brooklyn is New York’s largest borough, but its neighborhoods are sub worlds unto themselves. Much like Bed Stuy, Clinton Hill, North Williamsburg, South Williamsburg, Park Slope, Prospect Heights and all the others, Bushwick is a small town. From a yoga studio moonlighting as a bar, to a cafe featuring an indoor waterfall, to the now defunct haven for artists of all mediums to take classes, create, and showcase under one roof, we are a small town specializing in the niche—the stitch of our close knit exposed by the fact I don’t need to namecheck those establishments, you already know what I’m referencing. Our community is buzz worthy, which is why tons of blogs are dedicated to it. According to nycbloggers.com, a site categorizing blogs by train stops, in 2006 Bushwick (from Montrose to Myrtle-Wyckoff) had 62 non-Tumblr blogs. Feel free to multiply that total by at least twenty. Dated as the directory is, it effectively shows we’re eclectic people with sites representing all our facets, many of which display street photography.

The impact of photographing and posting without consent on domestic and interpersonal violence victims is that of a tree falling in a soulless forest. It makes a sound, but our court system prevents us from hearing it. For the protection of survivors and their loved ones, cases are sealed from public record—a testament to the severity and lingering effects of this crime, as well as our legal system’s desire to protect. Since 1994, the Social Security Administration has given special provisions for victims to obtain new social security numbers, offering a brand-new identity and erasure of the previous one. Their current domestic violence handout, in fact, encourages applying for numbers. Many victims who followed the SS Admin’s advice are only identifiable by their image to former abusers. Depending on economic standing, relocating a neighborhood or several blocks in the same city may be more feasible than a rebirth in a different state. Abusers unaware of the survivor’s patterns and whereabouts can become informed by lurking in the appropriate community interest-related sites featuring stealth photographs. Perhaps this seems a stretch, but based on survivor experiences as dictated through domestic violence literature and the abuser’s tenacious will for control clearly expressed by Anna Diamanti of the Family Justice Center and the NY Office of Prevention of Domestic Violence, our careless clicks run the risk of putting a survivor in harms way.

We’re unaware of our damage, but it’s not quite the absence of evidence argument. The evidence exists and is tangible; we just have to do more than a Google search to find it. In closing our discussion at the Family Justice Center, Ms. Diamanti said she thought those who photograph and publish without permission should “find a way to hear what [survivors] have to say,” by seeking out advocacy groups that will “dispel myths about domestic violence.” In doing so, she is hoping when they realize abusers “find other ways to abuse,” they’ll “at least add the black bar” to the subject’s face.

This is not a moratorium on street photography.

Street photography is a necessary form of historical preservation. Where memory sensationalizes or devalues an experience, still or moving image tells facts. Even Instagram filters and duck lips can’t hide the truth—they reveal more than conceal, as evidence of our conscious quest for faux perfection and the right to deluded vanity. Understanding the camera’s powerful commentary, plenty of street photographers respect their subjects by asking permission. Personally, I find the unexpected trust between stranger and photographer far more compelling than stealth voyeurism.*

New York law disagrees with my position. Consent in the form of permits, releases, and signs, are not required in a public space until a tripod makes an appearance. Until it does, everything is fair game. Suri Cruise can tell Mr. Demille to get out her face, but your kid can’t, as there is nothing to prevent a stranger from photographing and using your child’s image. As for you, unless the photog has a commercial or stock photography agenda, you have no way to enforce “no!” The sealed records for domestic and interpersonal violence victims keeps us from knowing our hand in their fate. So, I guess we’re absolved. Out of sight, out of mind, right? The spunk queen I confronted years ago on the L was within her legal right to record the wayward gentleman lost in his inner world, too. The law was on her side, but was morality? Morals, the height of subjectivity, make us sticky all over when defining them. Judgment abounds with bloodshed over right vs. wrong, often times without a clear victor. Gruesome as it is, the battle is rightly hard fought. Morals inform our ethics which the law ultimately enforces. In the face of fast track advancements, stale laws are proving insufficient in offering protection. Examining our conscience against areas justice has yet to conquer is the first step to determining what we will collectively deem acceptable. Am I alone in thinking we should start the convo on consent and what’s acceptable to point, shoot, and upload to the world, or am I on the road to Recluseville?

*As with any code of conduct, there are exceptions to the rule. The biggest exception in the case for consent when photographing is documenting on-duty police officers…a topic for another time.