”WHAT grabbed my attention,” said Alderman Edward M. Burke, ”was that TV commercial when the guy is eating the pasta like a slob, and the girl sends a photo of him acting like a slob to the fiancee. ” The commercial, for Sprint PCS, was meant to convey the spontaneity and reach afforded by the wireless world’s latest craze, the camera phone. But what Mr. Burke saw was the peril. ”If I’m in a locker room changing clothes,” he said, ”there shouldn’t be some pervert taking photos of me that could wind up on the Internet. ” Accordingly, as early as Dec. 7, the Chicago City Council is to vote on a proposal by Mr. Burke to ban the use of camera phones in public bathrooms, locker rooms and showers. There will be no provision to protect messy restaurant patrons. But Mr. Burke wanted to ban the use of camera phones in places where ”the average Chicagoan would expect a reasonable right to privacy. ” Not that tiny cameras couldn’t be spirited into intimate settings before. But now it is a matter of numbers: only a year after camera phones began to appear in the United States, there are now six million of them, according to the market-research firm IDC.
And when you marry a camera to a phone that can transmit the pictures instantly, legislation increasingly results. The Chicago proposal, setting a fine of $5 to $500 for offenders, echoes restrictions adopted in several smaller jurisdictions. What remains to be seen is how and when such laws will be enforced. While privacy experts, municipalities and the American Civil Liberties Union agree that photos should not be taken without consent in public bathrooms and showers, there is no consensus on the best method of balancing the camera owner’s rights with those of the unsuspecting citizen.
The town of Seven Hills, Ohio, backed down less than two weeks after proposing a ban to avoid possibly costly court challenges. The mayor, David A. Bentkowski, said he would leave the matter to state and federal legislation. Trying to distinguish between a camera phone and any other cellphone has also complicated matters. The Elk Grove Park District in suburban Chicago enacted a ban in November that covered the possession of any cellphone — not just camera phones — in park-owned restrooms, locker rooms and showers. There is no reason to have a cellphone while you’re changing and showering,” said Ron Nunes, one of the park district’s commissioners. ”I’d rather protect the children and the public more than someone who wants to call home and see what’s for dinner. ” Fresh in the town’s memory was a 2001 incident in which a man used a fiber-optic camera to secretly take pictures of children in a park shower. So far, there have been no complaints in Elk Grove about cellphone transgressions.
But Mr. Nunes concedes, ”It’s darn near impossible to enforce. ‘ There will be no searches of bags, he said, and park officials will not summon the police if a cellphone is found in a restricted area. ”We’re not going to arrest someone for making a phone call in a locker room,” he said. ”We’re counting on people to just say, ‘Shut it off. ”’ Though they are permitted in gym areas, patrons say they often leave their phones in the car when they work out there because they usually have to use the changing room first, where the phones are not permitted. Nancy Funteas, a business owner, said she was worried about missing calls while at the park district gym. ‘You feel protected in the locker room, but out here if you need it for business it’s not a good idea,” she said after finishing an upper-body workout.
Desi Leyba, a 30-year-old gym member, admitted: ”Sometimes I forget and I bring it in. I wonder if they’re going to make a case of it. ” L. Richard Fischer, a Washington lawyer who deals with privacy issues, said the park district’s ban goes too far. ”People have to pass laws very carefully and recognize there is a broad but flexible standard of reasonable expectation of privacy,” he said. ‘You have to do it very selectively or you really are treading on people’s rights. ” Banning cellphones from some locations could invite lawsuits from people who might have to use a phone in an emergency and be unable to summon help, he said. ”What they’ve done is go to the extreme,” he said.
”They’ve threatened the rights of the majority of people to try to control the conduct of a few, and that’s just beyond the balance. ” He added that the only way to deter people from taking photos of others was to punish them for taking surreptitious pictures rather than banning the phones. Des Peres, Mo. , a St. Louis suburb, passed a more limited and specific law in September that bans taking photos of a person who is partly unclothed without consent in an area where they should expect privacy. ‘The ordinance would provide the city with some teeth for the ability to prosecute someone,” said Jason McConachie, the assistant city administrator, adding, ”I don’t believe there is any way to proactively enforce it, like putting police officers in locker rooms. ” He said the city would help an aggrieved citizen pursue legal action against someone for taking pictures in a restricted area without consent — an occurrence as yet unreported.
Some courthouses have extended existing bans on picture taking to include camera phones. Representative Michael G. Oxley of Ohio felt that the federal government should draft its own provision, so he and a fellow Ohio Republican, Senator Mike DeWine, broadened the language in a law proposed by Mr. Oxley, the Video Voyeurism Prevention Act of 2003, to include camera phones. ”I think if we can nip it in the bud, we can avoid a lot of embarrassing situations or gross invasions of privacy,” Mr. Oxley said. ”Our bill would only apply to federal property, but it would spur the states to pass similar legislation. ‘ The law would prohibit the use of camera phones in restrooms in federal park districts and federal buildings. Breaking the law would result in a fine, up to a year in prison, or both.
Chris J. Hoofnagle, legislative counsel for the Electronic Privacy Information Center, a nonprofit group in Washington, acknowledged that the proliferation of camera phones had helped give new life to ”up skirt” or ”down blouse” photography. ”Clearly, this is going to get worse,” Mr. Hoofnagle said. ”There is a remarkable lack of sensitivity to the subjects of the photographs. ‘ But he said changing the norms of society, rather than its laws, was likely to be a more effective response. Barry Steinhardt, director of the year-old technology and liberty program for the A. C. L. U. , suggested that the camera-phone quandary reflected a larger problem: that technology has developed at the speed of light and American law is ”stuck in the Stone Ages. ” ”The rest of the developed world have fairly advanced laws that incorporate privacy and fair information that we invented in the 1960’s but didn’t implement,” he said.
While he would not comment on specific measures in Chicago and elsewhere, he said that privacy laws were justifiable but had to be very specific. What the United States needs, he added, is to establish a privacy commissioner to enforce existing rules and investigate the need for new ones. Technology for surveillance and data gathering is ”becoming more powerful every day,” he said. ”In the U. S. , our response to this has been to bury our heads in the sand and say, ‘It’ll all work out. ”’ Meanwhile, cameras are becoming not only more numerous among the nation’s 160 million cellphones, but also more capable.
Alex Slawsby, an analyst with IDC, said that by next year the typical camera phone sold in the United States would have a resolution of at least one megapixel, about three times the current average — doing wonders, no doubt, for the rendering of sloppy restaurant patrons. Whatever indiscretions arise in a camera phone’s use, the makers plead, don’t blame the equipment. ”There are people who would use things they shouldn’t,” said Keith Nowak, a spokesman for Nokia. ”There is not a product made that somebody somewhere with a good enough imagination couldn’t figure out how to misuse. ”