Massachusetts High Court Upholds Upskirt Photography

[john_h.1]

<p>http://www.cnn.com/2014/03/05/us/massachusetts-upskirt-photography/index.html?hpt=hp_t2</p>

<p>The court made the correct decision as much as the conduct should be condemned. We can't go by what we prefer a law means. We have to follow what it actually says. Massachusetts should amend its law to include the conduct and circumstances at issue in this case. In any event, a Breach of Peace charge would usually apply in these cases in my jurisdiction. I don't know if that's the case in Massachusetts or if there were other charges in this case. I think a breach of peace type charge will usually be better since it is not as reliant on content and 1st Amendment issues and is more based on behavior having substantial ill effect on others.</p>

<p><br /><br /><br /><br /><br /></p>

[Damon DAmato]

<p>I've heard of nullifying a conviction, but I've never thought about nullifying an acquittal. </p>

<blockquote>

<p>"Every person, male or female, has a right to privacy beneath his or her own clothing," Suffolk County District Attorney Daniel Conley said in a statement Wednesday.</p>

</blockquote>

<p>Exactly. <br /><br /><br /></p>

[jordan2240]

<p>I have to wonder how they'd decide if someone was caught taking photos of men from above as they stood at the urinal in a public restroom.</p>

<p>Regardless, I pity the perverts who think there is something attractive about the view up a woman's skirt. From the standpoint of the woman, there isn't likely to be any harm done since it's not likely she'd be recognized by the shot, but something seems wrong with a society that would allow such an invasion of a person's being.</p>

[john_h.1]

<blockquote>

<p>I have to wonder how they'd decide if someone was caught taking photos of men from above as they stood at the urinal in a public restroom.</p>

</blockquote>

<p>No need to wonder whatsoever. That would meet the 'partially nude' criteria of the state's statute.</p>

<blockquote>

<p>something seems wrong with a society that would allow such an invasion of a person's being.</p>

</blockquote>

<p>This particular methodology likely escaped the imagination of the legislators and executive enacting the law. I understand that an update is going to be introduced right away. States have also been passing voyeurism and related statutes to address clandestine invasions of privacy that may not meet statutes that cover more public behavior lie breach of peace ect. I don't think our society is tolerant of the behavior occurring in this case. </p>

<blockquote>

 

</blockquote>

[jordan2240]

<p>One thing is for certain, people are going to have to start realizing that there is no more privacy in public or even potentially private locations. I just bought my daughter a Panasonic FZ70 as a birthday present. Haven't given it to her yet, but seeing demos of what a lens that zooms to 1200mm will allow makes one realize that no action is beyond capture. Just because you don't see anyone nearby doesn't mean they aren't capturing every move you make. Used to be you could potentially catch someone pointing a huge lens in your direction - not anymore.</p>

<p>John, thanks for pointing out my oversight of current law. I might have argued in this case that wearing a skirt and bearing one's legs also constitutes partial nudity. Does the definition of 'partial nudity' address specific body parts?</p>

<p>It'll be interesting to see how the law is rewritten.</p>

[andylynn]

<p>The court's opinion is here: http://www.universalhub.com/2014/commonwealth-vs-michael-robertson</p>

<p>This is probably, as John suggests, a case of the press getting the details wrong when reporting on a legal matter. The court isn't saying upskirt photography is<em> legal</em>, it's saying upskirt photography doesn't violate <em>that particular law</em>, meaning c. 272 s. 105. That law prohibits secretive photography of a person who is at least partially nude in circumstances where the person has an expectation of privacy.</p>

<p>Some other violation - for example, maybe c. 272 s. 53, which punishes "persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex" might apply. But that's a lesser violation with a shorter prison sentence.</p>

[sarah_fox]

<p>To me, up-skirt privacy violations are troubling, but they're only the tip of the iceberg. I was recently exploring the option of using a borescope for looking inside walls for evidence of termites. I ultimately decided this was not a viable plan, but not before discovering one of the main uses of borescopes is peeping under doorways. There are also borescopes configured to install in small holes in the wall, some even with RF transmitters. Of course they're "really" meant for examining tiny spaces, like a gun barrel or the inside of a rocker panel, but they still focus to infinity. One wonders why.</p>

<p>I think we're going to have to decide whether we're comfortable with such things as a society. I know <em>I'm</em> not. I want/expect privacy when I'm in a bedroom or bathroom, just like I expect privacy underneath my clothing. As a photographer, I seek to respect people's private moments and privacy expectations. I no expert in the law, but I think a "reasonable expectation of privacy" should be applied as a litmus somewhere to make these sorts of privacy violations illegal. I also think "reasonable expectation of privacy" shouldn't be qualified with a footnote saying, "considering the realities of increasingly intrusive technologies."</p>

[charles_stobbs3]

How does Scotland treat this?

[john_h.1]

<p>I've noticed some court opinions recently that have expanded the 'reasonable expectation of privacy' to not just be in a private location but anywhere if they find themselves in a compromising situation. e.g. a wardrobe malfunction while at a sidewalk. These were in civil suit intrusion cases and the laws referenced 'places'. These changes should be made through the legislative process to go beyond locations. Certainly with upskirt type photography that is a situation (not a location) where privacy is expected. Wardrobe malfunction restrictions I agree with in principle but we need to be careful in setting limits to not needlessly restrict freedom of expression. Like in that famed Texas Improper Photography statute.</p>

[MichaelChang]

<p>Remember the Sony Handicam Nightshot story back in the late 90s? It was able to see through thin clothing if used under daylight with an IR-pass filter. Sony since crippled the Nightshot feature by limiting gain under daylight but still fully functional under low light. </p>

<p>Sony made the change voluntarily after reports of such uses in a men's magazine despite selling some 1 million units. </p>

<p>The law will always lag technology and its misuse, and since it's impossible to legislate behavior these types of cases will persist as long as there are technology users believing they can get away with it. </p>

[Brad_]

>>> I ultimately decided this was not a viable plan, but not before discovering one of the main uses of

borescopes is peeping under doorways. ... I think we're going to have to decide whether we're comfortable

with such things as a society. I know I'm not. I want/expect privacy when I'm in a bedroom or bathroom,

just like I expect privacy underneath my clothing.

 

Main uses of borescopes? You are suggesting their purpose is to spy on people inside their homes?

There are laws that would address that kind of invasion of privacy. No need to outlaw such tools.

[gary_leonard3]

<p>The state Legislature, too busy taking bribes to actually look at the law, screwed up. Yes, there were other laws that could have been invoked but apparently the prosecutor didn't take time to read the thing either. You tax dollars at work. Those who live in the state need to write their legislators and demand they get off their overstuffed wallets and fix this problem.</p>

[andylynn]

<blockquote>

<p>The state Legislature, too busy taking bribes to actually look at the law, screwed up.</p>

</blockquote>

<p>That's awfully harsh. Would you care to support that with ... well, anything at all, really? </p>

<p>I live in Mass. and I can only think of one recent case of a state legislator known to accept bribes, and that was 6 years ago.</p>

[JDMvW]

<p>I live in Illinois. Moved here long ago from Massachusetts.<br /> When people were asked to fill in a word for "why is X state so________", for Illinois, the word most commonly thought of was <em>corrupt</em>. Most of our living ex-governors seem to be in prison, too.</p>

<p>However, I remember the peeling license plates, the missing dirt from the Boston Commons (sp. Gardens) garage construction in MA, and so forth, so I think the main difference of Massachusetts is that either prosecution is more inept or that it has a smarter class of corrupt officials. Appropriately, I think the word thought of for Massachusetts was <em>smart</em>?</p>

<p>Either way, the legislature is quickly moving to "fill in the gap," so to speak, and revise the law to make such pictures illegal.</p>

[sarah_fox]

<p>Brad, you draw some very strange conclusions.</p>

[Tim_Lookingbill]

<p>I guess women are just going to have to start wearing bumper sticker underwear that says...<em>"If you can read this, you're a pervert that's going to jail".</em><br /> <br />I predict sales in thong underwear are going to considerably decline.</p>

[User_5888660]

<p>One of the evening news shows did an article on this type of photography. They set up a sting and caught men doing it. All the while the news cameras were rolling. When the reporters tried to question the men, they ran off. Still, their faces were on national TV. I wonder how they explained it to their spouses, neighbors and employers. </p>

[Tim_Lookingbill]

<p>What I can't understand is with all the free porn available online that shows WAY more than what's up a woman's skirt why would these men resort to taking such risk with little to show for it?</p>

<p>Or are we getting into weirdo fetish territory here?</p>

<p>Heck, just do like PeeWee Herman and just wear mirrors on your shoes and snap a picture of the mirror.</p>

[MichaelChang]

<blockquote>

<p><em>"What I can't understand is with all the free porn available online that shows WAY more than what's up a woman's skirt why would these men resort to taking such risk with little to show for it?"</em></p>

</blockquote>

<p>Probably because every successful shot is a trophy to be shared among like-minds on fetish sites. The thrill of the hunt, that sort of thing. </p>

[DickArnold]

<p>According to the Boston Globe this morning the legislature is about to pass an amendment to the law making such photography illegal. </p>

[BrianS1664879711]

<p>Whatever happened to just using one's imagination? Too old-skool??</p>

[john_h.1]

<p>That was quick. The statute change has been passed and signed...</p>

<p>http://www.cnn.com/2014/03/07/justice/massachusetts-upskirt-bill/index.html?hpt=hp_t2</p>

[MichaelChang]

<p>I can see the new law challenged if these men now stakeout woman and photographing them having a Marilyn Monroe moment while walking over a subway grid. </p>

[Tim_Lookingbill]

<p>Sounds quite close to Texas' Improper Photography law.</p>

<p>IMO it can be really tough to write laws that can cover all possible situations that attempt to insure the spirit of law is followed in order to control behavior in public gatherings without violating photographer's rights.</p>

<p>Never could understand why such terms as "reasonable person" can be included in the authoring of laws, a term that appears to leave the door wide open for interpretation and judgement on whether someone feels they are a victim in all possible situations and altercations when every other part of the law is written so specifically. Reasonable person?! Wouldn't say what most people do with their cell phones is anywhere close to reasonable.</p>

<p>Wonder if these law makers actually act out every possible scenario the law would cover or do they just listen to their own words to make sure it sounds authoritative and official.</p>

[Allen Herbert]

<p>Just perverts giving photographers a bad rep.</p>

<p>Sort of like cult/fanatic, so called, religious people giving religion a bad rep.</p>

<p>They bring in laws to restrict photographers freedoms.</p>