The other night, I was out with three friends dancing at the Salon, a bar/club in Providence. The Salon is a cool spot: ping-pong tables and arcade games on the ground floor, dark lighting and techno music in the basement. We'd been out for a few hours prior, and were ready to hit the dance floor. In the dark basement, my friend and I started dancing together, as we are often wont to do. Note that we're sexually empowered, queer ladies. So suffice it to say we weren't swing dancing.
Just moments after we starting getting our groove on, a flash startled us from the sidelines of the dance floor. My friend acted first, breaking away from me and striding toward the flash. "Put your fucking camera away!" she shouted, pushing the man's phone down. I was quick behind her and shoved him further away from us, vaguely aware of snickering from him or his cronies and acutely aware of my limited capacity to physically challenge any of these men. They slinked into the darker outer perimeter. Panting, the whole scene remarkably unnoticed by other dancers, we returned to our friends.
The events were quick but decisive: We danced together, a dude tried to (and maybe did) take a picture of us dancing together, we got him out of our faces to the best of our physical ability. The experience was violating and shook us up. We talked about it for hours after. This was ostensibly a gay-friendly club; there were many openly queer people in attendance that night. But still, this act of leering, sneering homophobia* happened right in front of everyone. And no one stepped up to defend us. We had to do that for ourselves.
I described the night's events to a couple friends and family members. "It's illegal!" I ranted at my mom the next day. I was furious at the thought of this pervy dude sharing his sexy lesbian bounty with fellow bottom-dwellers. "It's totally illegal to just take someone's picture without their consent and knowledge for your creepy personal stash."
"I don't think that's true," she firmly interjected. "I mean, people take pictures of other people without consent and knowledge all the time. It's unethical in this situation, but it's not illegal."
I glared at her. I felt so violated by the experience - how could it not be illegal? So, I Googled.
Of course, and as always, my mom was right - it's not illegal to take someone's picture without their consent. To many of you, this is probably painfully obvious. But I was surprised to find that it's not entirely legal, either - or at least not in all circumstances. It seems that the digital era has added shades of gray to this area of the law.
On the one hand, general resources like the Wikipedia page Photography and the Law emphasize that in public, you don't have the "expectation of privacy" that would protect you from nonconsensual photographs in private spaces, like your home or a bathroom. This Lifehacker guide for photographers states that in a public space, and in most private spaces that are open to the public (like a restaurant), "if you can see it, you can shoot it." So in our case, as long as the owner of the Salon hadn't explicitly banned photographs from the dance floor, it was technically legal for the pervy dude to take a nonconsensual photo of us.
On the other hand, there appears to be an increasing awareness that pictures taken in public spaces can still be violating. The Video Voyeurism Prevention Act of 2004 made it illegal to "capture an image of a private area of an individual without their consent, and knowingly [do] so under circumstances in which the individual has a reasonable expectation of privacy." This law came about as a response to instances where images or videos of women's genitals or breasts were taken without consent in public places. Crudely, it's the Anti-Upskirting Act. And again, expectation of privacy is key here. From what I gather, wearing clothes is the condition under which women's genitals/breasts would be granted the expectation of privacy under the VVPA. Rigorous legal protection, it's not.
Of course, once pictures are uploaded to the internet, there are any number of ways in which they can be used illegally (for commercial purposes, as slander, to reveal personal information). But when it comes to sexual harassment, the lines are much blurrier and, realistically, they're nonexistent. Take this story from an xoJane contributor whose naked selfies were nabbed from a forum and posted, without her knowledge, to a campus gossip website with her full name and class year. The gossip site demanded money to remove her pictures, despite the fact that they claimed the photos without her consent and caused psychological damage in the process. And they were not doing anything illegal.
Photography is strongly protected by the First Amendment, and it should go without saying that freedom to capture images is a key element of an open, democratic society. But at the same time, the complete absence of protections for subjects of nonconsensual photos seems to be a gaping omission. And it's not just me - other countries handle photography consent differently than the U.S. Hungary recently passed a law that taking a picture of anyone in a public place without their consent is illegal. The law has been largely decried by photojournalists, and I'd guess that it will be incredibly difficult to enforce. But perhaps it will also provide legal recourse for people who find themselves the subjects of photo harassment, such as me and my friend at the Salon.
In researching this piece, I found dozens of resources for photographers interested in knowing their rights to capture images. But I found almost no resources for unwilling subjects of anonymous photographers. Why? Because as far as I can tell, there isn't really any legal protection in the U.S. for unwilling subjects of anonymous photographers. And this sucks for progressive politics.
Hate crimes, verbal and sexual harassment, police brutality, and bullying are still harsh realities for many members of historically oppressed communities. Obviously, we've got a ways to go until members of these communities can feel entirely safe in public spaces. But lately it seems that even mainstream, center-of-the-aisle news sources are advocating trans* rights, acting appalled that racist people could own mostly-black basketball franchises, and cheering women for Leaning In™. It'd be easy to think that we're rounding the corner on the home stretch towards universal rights and equality. (I know no one reading this actually thinks that, but there are definitely a lot of mainstreamers who do.) But the lived experience of many folks in these communities doesn't reflect this facade of progressivism. And in order to truly aspire to a future of universal rights and equality, we need more legal protection for targeted groups, not less. That includes holding harassers accountable for the damage they cause victims. Even if a document written 225 years ago by old white dudes says otherwise.
*I could see someone (stupidly) challenging my premise that this act was homophobic, given that my friend and I didn't have a conversation with the Slimeball in Question (SIQ) about his intentions in taking our picture. To those crying "misandry!" let me say this: being queer and a woman and in public, especially in the company of another woman who is also queer and who you may be touching, means you need to be on your guard. It means you need to be ready to protect yourself, because the risk of physical and/or psychological harm is real. So no, I'm not going to assume SIQ had "good" intentions in this situation because a) what the fuck would a good intention be in this situation? and b) I have enough experience to know that when an unknown, tall, straight-presenting, intimidating, probably drunk, white man approaches me or other queers in majority-straight spaces, the results are never positive. We never walk away thinking, "Oh, I'm just so glad I met that nice straight white boy! He was really an ally. Thank goodness for straight dance clubs, facilitating such excellent cross-cultural bonding." No. That's not reality. And in case you need more heart-wrenching stories to get your First-Amendment-loving-panties out of a bunch, this literal same experience has happened to me before, and it was confirmed that the intentions were not good. There are not SWM in majority-straight spaces snapping pics of women being intimate together just to go show his friends that Providence is really making strides in its progressive politics. So yes, this was a display of homophobia and harassment. Let's move on.
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