This is the face of a man who attempted to change privacy as we know it.

His name is irrelevant but it’s Ermo Nussenzweig just for the record.  This is a photograph from a series of photographs shot by Philip Lorca diCorcia, one of my favorite photographers of all time.  Lorca diCorcia set up a lighting set and a camera in scaffolding on the streets of NYC.  The camera’s shutter was triggered by motion.  When an unsuspecting person walked through what looked like typical NYC construction scaffolding, it would snap a close up photograph of the person with perfect lighting, perfect focus, and perfectly ignorant that they were being photographed.  Photographers are always fascinated by how a camera changes the persona of the subject.  Lorca diCorcia created an entire series of these and sold them as a book and in galleries where each print sold for between $20,000 and $30,000.

Expectedly, one of the subjects was upset that their image was being sold for this much money and they received absolutely nothing.  He sued for $2 million in “damages.”  

The case worked its way through the New York court system and was finally decided.  The photo’s subject argued that his privacy and religious rights had been violated by both the taking and publishing of the photograph of him. The judge dismissed the lawsuit, finding that the photograph taken of Nussenzweig on a street is art – not commerce – and therefore is protected by the First Amendment.  The judge ruled that New York courts have “recognized that art can be sold, at least in limited editions, and still retain its artistic character (…) First Amendment protection of art is not limited to only starving artists. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes.”

Although this was the argument the judge used in the case, the real issue at hand was…a ruling in support of privacy would have changed the entire landscape of photography and what it means for you to be in a photo in a public place.  Also, it would have changed the art of photography in a public space.  It would have made photography in a public space damn near impossible and illegal.  It would have lessened the world and what we as a culture gain from great art.

I think there are many parallels to this story and what we understand as privacy in a digital age.  There is so much to gain by having a huge pool of digital records where each point of data can contribute to the intelligence of our culture.  There is so much to at least getting out there and walking down the digital sidewalk.  However, every once in a while, some entity will “take your photo” and try to sell it for a ripe sum.  It’s inevitably going to happen.  We’ll take as many precautions as possible, but there’s no other way.  Everyone in America has health information in digital format.  But we’re not doing anything with that information.  The system doesn’t exist to do that in any meaningful way.  Yet…

Four months.  Actually after this evening’s dinner, not even four months.  It’ll be sooner than that.  Get ready NYC.