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27 U. Haw. L. Rev. 377 (2004-2005)
Don't Smile, Your Image Has Just Been Recorded on a Camera-Phone: The Need for Privacy in the Public Sphere

handle is hein.journals/uhawlr27 and id is 383 raw text is: Don't Smile, Your Image Has Just Been
Recorded on a Camera-Phone: The Need For
Privacy in the Public Sphere
Perhaps the most important aspect of privacy is that it confers upon people the
most important right of all-the right to be left alone.'
I. INTRODUCTION
By the late Nineteenth Century, advances in photographic art... rendered
it possible to take pictures surreptitiously,2 whereas prior, photographic art
was such that one's picture could seldom be taken without his consciously
'sitting' for the purpose.3 Due to ever-evolving technology, surreptitious
photography and videotaping have become more commonplace, rather than
exceptional, today. Renowned photographer Walker Evans,4 celebrated most
recently for his collection of photographs taken from 1938 to 1941 in New
York subways, secretly captured images of subway passengers in violation
of a ban on subway photography.5 He took the photographs as part of a self-
assigned photography project to look at the people.6 Regrettably, this ability
for people to capture images of others surreptitiously for artistic purposes has
taken on a markedly perverse twist-photos and video recordings of women's
intimate areas-and is exacerbated by miniaturized technology. When com-
bined with the accessibility and dissemination capabilities of the internet,
invasions of privacy occur regularly and images can now be circulated, with-
out the victim's knowledge, to millions of others instantaneously.
Imagine this: you are walking in the mall and notice someone who appears
to be talking on a cell phone. Now imagine that as you pass, you hear the
familiar click of a digital camera as it records a picture. You turn to identify
State v. Kam, 69 Haw. 483,492, 748 P.2d 372, 378 (1988).
2 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REv. 193,211
(1890).
3Id.
4 He is considered to be one of the 20th century's most influential photographers and
artists. Randy Kennedy, Petals on a Wet Black Bough, N.Y. TIMES, Oct. 31, 2004, § 7, at 6,
available at http://query.nytimes.com/gst/fullpage.html? res=9D01 E2D8 1E3AF932A05753C
1A9629C8B63 (last visited Dec. 16, 2004).
' Sarah Boxer, ART; Tunnel Visions, N.Y. TIMES, Oct. 17, 2004, at § 2, at 32, available
athttp://query.nytimes.com/gstlabstract.html?res=F40D1EFD355FOC7488DDDA90994DC40
4482&incamp=archive:search (last visited Dec. 16, 2004). The Metropolitan Transportation
Authority has proposed a reinstatement of the subway photography ban for security reasons.
Id.
6 Kennedy, supra note 4.

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