BILL NUMBER:  S1648

 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 :

2015-16: S5383/A7804 - Codes/codes

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
Immediately.