This comes from a real question posed by David, related to photos and recordings' relation to laws and ethics. I'm glad to see a real conversation come from my indulgence of the urge to get in the mud. The original comment:
Question: In which of these cases is it ok to record another's voice, without them knowing?
-in a conversation with them?
-when they're conversing with someone else?
-when they're giving a lecture in a school?
-when they're giving a public performance?
I ask because I think this has some relevance to this debate on street photography/personal rights.
Again, keeping it real...
It depends on the content and the purpose for recording it. As with anything, there are no absolutes. Even in the law, such things are often tricky, and the judgements and rationales difficult to navigate. That's why the law requires people to interpret it according to circumstances.
But for the creator of such content, the guidelines of content and purpose, whether it be photography or my podcasting.
So, if an undergraduate recorded their biochemistry lecture, who cares? It's not sensitive material. If they recorded it on a site that resold the content and charged for access, then suddenly, it becomes sensitive, because the professor's purpose for giving the lecture was not to have it sold, without their permission, for commercial purposes.
Same with photography – you can't take a picture of someone eating ice cream and sell it to Baskin-Robbins; if the people in the picture sue, unless they have signed contracts and model releases, BR's goose is cooked.
Taking a recording without someone's permission is technically illegal (I believe), but who cares if I record the people at the next table's conversation and keep it in my personal archives? If I use it on a radio show and somehow the people in the recording find out, I can get in real trouble.
That's why Linda Tripp's recordings were so morally screwed up and legally problematic – it's sensitive material (i.e. "I blew the President") and how the material was gathered (being recorded without permission) is at issue.
If you are a photojournalist (or anyone else, but most everyday people don't walk around taking pictures of sensitive things), if you take pictures, you have to know that you might be subpoenaed for the materials, even if you don't want to hand them over. Or if you're working in a poor country run by a repressive regime, it doesn't matter what your intent is if you can't secure your own person; that's something to think about.
And people complain about street photography here (apparently), but I think the issues aren't much different from audio (or video) recordings: it's about the content and the intended use. And I think that my podcast #16 ("December in Myeongdong") is actually quite similar to my street photography in that it's random snippets of real Seoul (one in pictures, one in snippets of conversation and sound as I walk down the street), with no coherent theme or story.
And I think the liklihood of someone getting hurt from the pictures about the same as the audio – sure, I might be recording the passersby saying ("...and yeah, when Mary Ann Kim slept with John Doe Lee after the Samsung office party in Dogok-dong..."), but it's probably not going to happen.
Same with the pictures – yes, a person might be momemtarily surprised to find that – out of 10 million people living in Seoul, their picture of them carrying flowers was in a photo book or some photographer's site, but in the end, it's not content that's going to affect them materially in any way.
I think a lot of this paranoia comes from an overreaction to the early days of the Korean internet, mostly. Yeah, we needed a few horrible examples from which to learn, but in the age of "UCC" and people literally taking off their clothes and dancing in pink pajamas for a shot at the big time, while the nation "ho-hums" and moves on to the next distraction of the week, there's not going to be much that will gather the interest of the nation. Even the couple near-naked dancing on the car in the 2006 World Cup (a Korean girl with a white guy – oh, the horror!) was kind of like, "Well, umm...they're kinda lame. She's stupid, but oh, well...") She wasn't leaving school and changing her home address because of it.
Anyway, it's about the content and the purpose of it being recorded. I've gotten email asking "What if I recorded you in a compromising position and put it on the Internet?! Huh, huh?!" Well, you'd be a) recording me in a compromising position on PURPOSE, so the content itself is questionable, and b) you'd be doing it to hurt me. Pretty much the opposite of what I do.
If I were to publish a picture of say, a drunk salaryman vomiting, my goal wouldn't be to destroy his life to prove a point, nor does his individual identity matter to me. In fact, I'd probably choose a shot in which he was blurry, to protect his anonymity, but the fact that it was a salaryman in a suit vomiting would be clear.
A good and similar example is above, where I chose one of the artistically worst out of several shots, since the faces were clearly visible in others, but I chose to publish the one in which the least faces were shown (a friend is shown there, but it's small, blurry, and you're likely not going to lose your job or wife over having been there to help an unidentified drunk friend), especially the one of the person in question. And I lucked out because you got some depth to the picture with the alley, which also helped contextualize it. But there were other shots that showed more – I still erred on the side of politeness and caution, since I think about the possible harm that might come to subjects, although I think that highly unlikely.
So I conveyed the point – such scenes are as much a part of night life in Korea as any kids playing in the park wearing hanboks on Chusok, stuff that I am completely unconcerned with – without compromising a subject. And frankly, such scenes are so common, and/or something that is such a part of anyone's individual experience, that having been drunk like this is still not going to get anyone fired. Frankly, such an eventuality ("public drunkenness", which is an actual crime in the US, but not in Korea) would likely be much more problematic in America than in Korea.
And what anyone thinks about what this says about "Korea" – I don't work for the Korean National Tourism Organization, nor some imagined Society to Give Korea a Bad Name in the International Community (SGKBNIC); I'm just a street photographer and I shoot what I see, the rhythms of everyday life. And if you actually walk around any Korean city on any given night of the week, you will see drunk men in suits staggering about, women consoling their suddenly sad (and very drunk) friend, and vomit on the sidewalk in the morning anywhere in Chongno is probably about as common as doggy doo on the sidewalk back in the US.
Is it "good?" Is it "bad?" Well, if you're the kind of person who thinks that shooting a man carrying flowers is "anti-Korean" – well, you're already pretty paranoid, and a lost cause for me, anyway.
It's like my favorite prostitution picture, in which it having been shot on 1600-speed, extremely grainy color film prevents any real detail from being shown, combined with the fact that the subject's face is too small to make out any distinct features, what with the obvious wig/hair salon special she's wearing, or the standard outfitting of false eyelashes and a pancake of makeup. I dare even her best friend to try and recognize her in person, let alone through the wide-angle lens of a photographer driving his car with one hand, nervously pointing his camera through a tinted-glass window.
You can make out enough detail to see her expression, but not actively identify her; she could be anyone. Even if the woman in question recognized herself, she'd have a tough time even proving it was here, beyond a shadow of a doubt, in a court of law to even sue me in the first place. That's why this is the perfect picture.
For all those who disagree, and think my intentions somehow evil, let me just say that if I could show you the one picture I can never show in my defense, this particular argument would be over. Done. It's a high-resolution digital shot of a woman in a similar position, but it's razor-clear, and chock full of detail and character.
Personally, I think mine to be technically much better and more honest than the one below that was published in the SF Chronicle (with no concern being given to Korean law, in terms of the subject, whose face is clearly shown – the only reason I republish it here is because it's been linked to and passed around the 'net to no end, with even progressive American NGO's linking to it, who never don't consider this a problem because hey, it's not my society, right? – at least I can make a good point with it, since the cat's out of the bag); you'll never know, because you'll never see that picture. I'll never publish it.
Just for the record, my picture shows what is more typical in these areas after anti-prostitution law – girls sitting around between customers, typically knitting (a fad these days), chatting, or taking a smoke; my shot was of a woman singing along to a pop tune on the radio, and was full of rich details, such as a "protect youth from violence" poster from a government campaign, beauty supplies, clothes in the back, stuffed animals, etc. And that was gained by getting my ass out of the car, walking by and breathing the same air as my subjects, risking getting caught by the thugs in the area, and not pulling the sneaky move of shooting out of a car window, catching them as they noticed the camera and then driving away.
What I don't like about the picture is that the apparent look of disdain and sneer on the face of the women in the picture comes from realizing that they're being photographed more than from the apparent plight in which the Chronicle obviously has a vested interest in proving these women are in.
And before you good feminists get all up in arms because you think I am saying that these women aren't in some plight, I'll just say that no matter what I think about the institution, when I'm photographing, I take the mission of capturing what I find dead serious. When I was nervously walking through Yongsan when I got the pictures I was describing earlier, I wasn't looking for a particular booth, or a kind of girl, or look; I was just walking, snapping, walking, snapping, with my remote plunger in my pocket going off at every stall (if I actually had the camera to my eye, or even my hand on the shutter, I would have been surely stopped by the watchers in the area, who are there to protect the girls, their business, and their interests – and that doesn't include media people taking pictures); when I came back to my monitor at home is when I found gold.
And there's gold there, in the sense of a couple pictures that shed much more life, even in single shots, and give the women in the windows much more complexity than the pictures that appeared in the Chronicle. And I wonder why, if the Chronicle respected their subject enough to blur the picture and omit the face of one of their main informants, they were OK with plastering the faces of these Korean prostitutes in Korea all over the Internet?
In American terms anyway, what they did was legal. The girls were in a public place. And realistically, they're not going to be sued internationally according to Korean laws for shooting a hooker. Photographically, though, I thought the Chronicle's moves pretty disrespectful of the subjects in Korea, highlighted by how extra-sensitive they were being to the main subjects – who also had vested interests in proving they were being trafficked and getting on the fast track to a green card.
Say what you want about me poking the sacred cow of the trafficking issue in the ass, but that's something that bothered me about the whole "exposé for the sake of these poor women" that was worked by the Chronicle. Why is it that they seem to show more care to the women in the US than to the women they came to photograph in Korea? Aren't the future prospect of the passionately-described "Youmi" of the feature as important as the unnamed Korean hookers whose faces are shown without a moment's hesitation across the Internet?
That's why I get so steamed about people calling me or my photography or this site "anti-Korean" or that I disrespect my subjects; if you knew the pictures I have held back on (and continue to), even when foreign photographers are showing up to cover and shoot topical issues about which I've got better material and access on hand down – and could simply push the "publish" button on my blog to easily prove it...I don't.
And that's out of respect for my subjects, respect for Korean law, and for wanting to continue to function here as a photographer in Korea. As a no-name photographer, it was tempting to pull out all my best stuff and jump on the bandwagon – how easy would that have been? To make a mega-post about prostitution and populate it with those money pictures I'd never shown before? Let me tell you – fucking easy.
I'm not trying to make myself out to be some saint – I'm just trying to tell the haters: if only you knew the choices I make when editing, you'd know that if this photographer/blogger/podcaster actually "hated" Korea – wow.
But I make virtual promises with my subjects to basically not fuck them, nor step over ethical lines. Hence, no matter how much I rant and rage about the education system here, I keep my camera off when it comes to the kids I teach. Even when I come to hate certain of the institutions who quite literally fucked me. Because one thing (my having been screwed) has nothing to do with the other (my kids and the implied assumption that, as a teacher, my kids' privacy comes first, my being a photographer is secondary).
Anyway – what I have described above is just one example of how content and intent, as well as affective commitment to the place you're at, where you call home right now, affects the artistic and ethical choices you make.
And for those who think this results in being "anti-Korean" or "unethical" or whatnot – I just have to say that you are definitely either overly paranoid and nationalist, or you have no direct experience with having produced and published anything yourself. And if you combine the two, without asking the intelligent kind of questions that David did, which allowed me to formulate a clear answer – that you have to think about content and intent, along with a respect for the subjects while balancing the desire to express something in general, and that there are no black-and-white – then it's difficult to say anything particularly useful.