[blindlaw] Do blind people have a right to visual memory?

Wed Jan 24 18:16:52 UTC 2018

So to me this is an interesting question about a right of people to visual
memory. It has me more interesting to see something like AIRA. What is mean
is this:
A blind person is working with an AIRA agent while traveling; there is an
accident involving the blind person, hit by a car, gets hurt from a trip and
fall on degraded sidewalk or who knows? The AIRA interaction will be of
interest to many in that instance. I am not practicing but that seems like
it could be an important evidentiary question about admissibility that we
would not have confronted in times past, one we will receive at some point. 
Jim McCarthy
-----Original Message-----
From: BlindLaw [mailto:blindlaw-bounces at nfbnet.org] On Behalf Of Sai via
BlindLaw
Sent: Wednesday, January 24, 2018 1:05 PM
To: Blind Law Mailing List
Cc: Sai
Subject: Re: [blindlaw] Do blind people have a right to visual memory?

I think you took me to mean something a bit different than I intended.

Yes, there are things that just aren't going to change, and we have to deal
with that, as well as have legal protections as fallbacks. For instance, as
you mentioned, there's absolute right of way for cane users. I've certainly
had my share of navigation issues (like I said) where I probably could've
done better had I been in a better state and with better skills, but I
wasn't, so had to rely on that. (Thankfully I've never been run into by
anything worse than a clueless pedestrian, but I sure as hell would want the
other person to pay if that happened, even if I was in the bike lane or
whatever.)

However, my point was about situations where there *are* potential remedies
available, but they are legally restricted by default, like recording.

I'm not proposing that the government (or third parties) would have the
burden of paying for such things; I think ADA-style accommodations are a
pretty good balance.

Rather, I want the government to not punish me (or threaten to) for
recording whenever and wherever I want. A sighted person in the same
situation would have had the opportunity to see and remember what they saw.
I can mimic that ability using a pair of sunglasses with a hidden camera in
them. (I actually have a pair.)

But even when I'm totally taking on that burden of accommodating myself,
right now, I might be prohibited from doing so.

Most courts, for instance, ban all recording. But suppose I'm arguing at a
hearing, or a jury trial. A sighted lawyer in my position would be able to
remember how the judge or jury reacted emotionally to various things, and
use that knowledge when preparing for the next hearing. I would not be able
to do that... unless I can record it.

So on what basis could I argue for the right to record it?

Or, to put the converse again: would it be legal for the court to say
everyone entering the court has to wear a blindfold? Would it be legal for a
judge to say that opposing counsel, in my particular case, has to wear a
blindfold at all times during my case?

I think the answer to both of those is clearly 'no'. So why is it legal for
the court to prohibit me from recording, since that's the next best thing to
vision that I have available to me?

This question doesn't really get at accommodations in general, i.e.
affirmative steps that others have to take. Those are of course the much
more common scenario.

This only gets at a challenge to prohibitions on what you could do now, but
would be punished for doing.

The closest "normal" thing I can think of that's like this question is
jaywalking. Presumably cane users have a right to jaywalk, even though
that's otherwise a crime, without fear of any government punishment for
doing so.

Sincerely,
Sai

On Wed, Jan 24, 2018 at 3:23 AM, Daniel McBride via BlindLaw
<blindlaw at nfbnet.org> wrote:
> Sai:
>
> With all due respect, I am not really sure what your question entails 
> and, given my best impression of your question, I am believing I might 
> have more legitimate issues to worry about.
>
> There are those of us who are blind. There are those who are not. I 
> certainly understand the concepts underlying the ADA and a disabled 
> persons right to a fair, and equal, chance at life and what it has to
offer.
> However, within this context, at some point I have to face the fact 
> that I am blind and live with its limitations.
>
> Let's say I seek, for example, my constitutional right (?) to be a 
> starting pitcher in major league baseball so I get the chance to 
> experience what sighted persons experience, or to be a starting 
> quarterback in the NFL so I can experience what sighted persons get to 
> experience. Or, I can simply accept the fact that I am blind and 
> realize that a blind person will never pitch in Major League Baseball nor
be a starting quarterback in the NFL.
>
> I'm sure I navigate places daily that I am unaware are potentially 
> hazardous. In the painted bicycle lane example, if a sighted bicyclist 
> sees a blind person on the shared sidewalk with his/her cane, or guide 
> dog and the cyclist is unwilling to yield to the blind person, then I 
> am more concerned about the cyclists' ability to satisfy my judgment 
> against him/her for any injuries they might cause me.
>
> If I understand your question correctly, I believe it falls into the 
> category of being careful what we ask for because we just might get it.
>
> And my comment is intended respectfully. Just my two cents worth. And 
> I might be misunderstanding the intent of your question as well.
>
> Daniel McBride
> Fort Worth
>
> -----Original Message-----
> From: BlindLaw [mailto:blindlaw-bounces at nfbnet.org] On Behalf Of Sai 
> via BlindLaw
> Sent: Tuesday, January 23, 2018 2:01 PM
> To: Blind Law Mailing List
> Cc: Sai
> Subject: [blindlaw] Do blind people have a right to visual memory?
>
> Consider any of various situations where it is illegal to secretly 
> record video. Customs, courts, etc etc.
>
> A sighted person going through those situations would have a visual 
> memory of what they saw. A blind person would not; they wouldn't have 
> access to the same information that the sighted person does (albeit
limited by memory).
>
> So, could one (winnably) argue that the blind person has a 
> Constitutional
> *right* to covert video recording, i.e. the right to see and remember 
> what they saw (albeit through the intermediary of a recording), at 
> least for personal or testimonial use?
>
>
> I started thinking about this recently during O&M training. I recorded 
> the training session out of curiosity to see what it was like.
>
> I didn't learn until after recording that training session that a 
> street I walk very frequently has a painted-on bike lane on part of the
sidewalk.
>
> I had absolutely no idea it was there, despite having walked that 
> exact path for months and easily recognizing various parts of it by 
> cane. The painted-on bike lane, and the division between it and the 
> pedestrian part of the sidewalk, just have almost zero perceptible 
> tactile cues, let alone something to indicate "don't walk here".
>
> As a result, in that video of my training session, I was blithely 
> walking along the curb side of the sidewalk, smack in the middle of a 
> bike lane. It came as quite a shock to me when I reviewed the video.
>
> I've had multiple other experiences where visual memory was critical, 
> like where TSA violated my rights and I needed evidence of who did 
> what. Had I not been recording, I wouldn't have that evidence.
>
>
> So it makes me think: what about establishing a blind person's right 
> to perceive, and recall, the same visual information that a sighted 
> person would have access to in the same situation? (Or likewise for 
> d/Deaf and audio, or psychological issues and memory in general.)
>
> Has anyone ever tried this?
>
> Sincerely,
> Sai
>
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