Electronic Recording or Surveillance of a Nude Person in Massachusetts

Revenge porn, also known as nonconsensual pornography (NCP), involves posting on the Internet or otherwise distributing a sexually explicit image or video recording of someone else, without the person's permission. The image may be a photo the victim took herself and naively shared with the eventual poster, a photo taken by another person (often a brooding or angry ex-boyfriend or lover), or an image taken from the victim's computer or device by a hacker. The victims are overwhelmingly female, and the damage done to their reputations and psyches can be enormous.

States are increasingly passing targeted legislation that criminalizes such conduct. Some laws require that

• the prosecutor prove that the person disseminated the image(s) with information that identifies the subject (the person in the image),
• the person intended to distress or harass the subject, and
• the dissemination actually caused emotional distress or other harm to the subject.

Electronic Recording or Surveillance of Nude or Partially Nude Person

Massachusetts has not criminalized disseminating images or recordings made with the subject's consent or by the subject herself (selfies). But under a Massachusetts statute entitled "Electronic Recording or Surveillance of Nude or Partially-Nude Person" (Mass. Gen. Laws ch. 272, §105 (2017)), it is a crime to secretly or surreptitiously photograph, electronically record, or use an electronic device to view a person who is nude or semi-nude without the person's knowledge and consent.

It also is a crime in Massachusetts to use an electronic device to photograph, record, or view a person's sexual or other intimate parts under or around the person's clothing, without her knowledge or consent, when a reasonable person would believe these parts of her body are not visible to the public. This section was added to the statute to address the act of using special equipment to look up and photograph areas of a person's body underneath her clothing, also known as "upskirting." Creative peeping toms have begun using special electronic equipment to look up women's skirts in public settings, such as public transit and even restaurants, and photograph intimate parts of their body. (For more information on upskirting, see our article, "Upskirting.")

A person can be charged with a crime under the electronic recording or surveillance statute if he or she disseminates an image obtained through one of the processes described above and without the subject's consent. Dissemination of these images carries more serious penalties than viewing a person or creating the images (see "How is Electronic Recording or Surveillance Punished in Massachusetts," below).

The electronic recording or surveillance statute was originally enacted to address voyeurism enhanced by electronic devices, but it is a tool that prosecutors can use, in some instances, to address NCP or revenge porn. If an ex-partner photographs or makes videos of his ex during the relationship without her or his knowledge and then posts the images after the break-up (without consent), he could be charged with a crime under this Massachusetts law.

What is "Electronic Recording or Surveillance?"

To electronically surveil someone under the Massachusetts statute means to view, obtain, or record a visual image of a person with "a camera, cellular or other wireless communication device, computer, television or other electronic device." (Mass. Gen. Laws ch. 272, §105(a) (2017)). A peeping tom can be guilty of this crime if he uses a camera or other electronic device to look at (view) a person in her home, even if he does not make a recording of what he sees. He also will be guilty of a crime if he makes photographs or video recordings of what he views (obtains or a records a visual image).

Nude or Partially-Nude Person and Sexual or Intimate Parts Defined

The crime of electronic recording or surveillance of a nude or partially-nude person involves secretly photographing, videotaping, or electronically surveilling a person who is wearing no clothing or only some clothing. "Partially nude" refers to exposed genitals, buttocks, pubic area, or the female breast below the top of the nipple. If a person is partially undressed, one or more private part of the person's body listed here must be exposed.

The crime of electronic recording or surveillance of a person's sexual or other intimate parts under or around the person's clothing, or "upskirting," requires that the person view or record certain parts of the body. "Sexual or intimate parts" refers to the genitals, pubic area, or the female breast below the top of the nipple either "naked or covered by clothing or undergarments." (Mass. Gen. Laws ch. 272, §105(a) (2017)).

Reasonable Expectation of Privacy

The electronic recording or surveillance must occur in a place and under circumstances where the subject has a reasonable expectation of privacy, such as in a home or hotel room. Secretly photographing or recording a nude dancer in a strip club, or a person who has chosen to be nude in a public place, probably is not a crime under this law. The reason is that because the dancer and the person who appears nude in public are in areas where they should expect others to see them, they cannot reasonably expect privacy.

Exceptions to Massachusetts Electronic Recording or Surveillance Law

This criminal statute does not apply to businesses that use electronic surveillance in changing rooms, as long as signs are posted at the entrance to and inside the changing room that advise customers that the business uses electronic surveillance equipment.

The statute also does not apply to law enforcement officers acting in the scope of the officer's authority under applicable law or an order or warrant issued by a court. (Mass. Gen. Laws ch. 272, §105 (d) and (e) (2017)). For example, a police officer conducting surveillance using cameras and recording devices will not be guilty of a crime if he sees or records someone getting undressed, as long as the officer has a court order or a search warrant allowing the police to conduct the surveillance. A police officer who secretly photographs his girlfriend or another person cannot claim to be exempt from the statute, because that activity was not part of his police work and was not sanctioned by a law or court order.

How is Electronic Recording or Surveillance Punished in Massachusetts?

A person who commits the crime of electronic recording or surveillance in Massachusetts of either a nude or partially nude person, or the person's sexual or intimate parts, can be punished by up to 2½ years in the house of corrections and a fine up to $5,000. If the subject of the recording or surveillance is a child under the age of 18, the crime is punishable by up to 2½ years in the house of corrections or five years in state prison and a fine up to $10,000. (Mass. Gen. Laws ch. 272, §105(b) (2017)).

A person who violates the electronic recording or surveillance statute by disseminating images of an adult can be sentenced to up to 2½ years in the house of corrections or five years in state prison and a fine up to $10,000. If the subject in the images is a child under the age of 18, the person who disseminates the images can be sentenced to up to 2½ years in the house of corrections or up to ten years in state prison, and a fine up to $10,000. (Mass. Gen. Laws ch. 272, §105 (c) (2017)).

In a criminal case where a person is being prosecuted for violating the electronic recording or surveillance statute, the court can issue an order restraining or preventing unlawful dissemination of images obtained in violation of the statute. (Mass. Gen. Laws ch. 272, §105 (h) (2017)). In such a criminal case, the statute also prohibits the image or images at issue in the case from being open to public inspection. Court personnel may make the images available only to law enforcement officers, the prosecuting attorney, defense attorney, the defendant, and the victim, unless the court orders otherwise. (Mass. Gen. Laws ch. 272, §105 (h) (2017)).

Civil Action and Other Ways to Address NCP

A victim of revenge porn in Massachusetts can report the NCP to the social media companies in question, even if the electronic recording or surveillance statute does not specifically apply to her situation. The victim also can file a civil law suit and request that the person who posted the images be ordered to remove them and pay damages if the victim has suffered financially from the posting of the images. For instance, if the victim of revenge porn loses her job because of images another person posted of her on the Internet, she can sue the person who posted the images for lost wages. The Cyber Civil Rights Initiative, a non-profit devoted to helping victims of NCP, has published an online guide to the steps victims can take to address NCP.

Consult an Attorney

Violation of the Massachusetts electronic recording or surveillance law is a serious crime. If you have been charged with this crime, contact a criminal defense attorney for information about your rights, possible defenses, and representation. If you have been a victim of NCP, you can contact a civil attorney or a criminal defense attorney to learn about your rights and options.