Perverts are as susceptible to new technologies as the rest of us (perhaps more so) and the cell phone camera has provided voyeurs with new means of peeping on us (or parts of us). But, when it happens in public, how does the law deal with it? This is an evolving area of law that implicates privacy and other constitutional rights.
“Upskirting” is a term used to describe the secret recording of an image (usually by cell phone camera) of another person’s private parts, often shot surreptitiously up the skirt of an unsuspecting woman in a public place. Some photographers/voyeurs take such images for their own private viewing, but others post the images on pornographic websites devoted to this kind of material. While the practice of secret, voyeuristic photography and videography has been around since the invention of the camera, the phenomenon of upskirting gained national attention after a controversial ruling by a court in Massachusetts. Not too long after that decision, a Texas court issued a similar one, based on the First Amendment. (See Why a Texas Court Invalidated the State 'Upskirting' Ban.)
The Massachusetts case involved a man named Michael Roberts, who was arrested after using a cell phone camera to surreptitiously take photographs up the skirts of women passengers on Boston’s public transit system, including a plain-clothes cop on a decoy operation to catch him. Robertson was charged with violating a law that prohibits photographing or videotaping nude or semi-nude individuals without their consent. (Mass. Gen. Laws ch. 272, § 105.) Roberts argued that the law didn't apply to him because the victim was neither nude nor semi-nude. The trial court denied Roberts’s request to dismiss the charges, and he appealed.
On March 5, 2014, the Supreme Judicial Court of Massachusetts agreed with Roberts, reversing the trial court and dismissing the charges because the individuals Roberts upskirted were not nude or semi-nude. The court went so far as to note that, under the law as written, the charges should be dismissed even if the victims had no underwear on. The decision received national media attention and spurred much outrage. Massachusetts lawmakers promptly responded: On March 7, 2014, CNN reported that Governor Deval Patrick signed an upskirting law that the legislature had passed one day after the ruling in the Roberts case. The new law makes surreptitious photography, videotaping, or electronic surveillance up a woman’s skirt or down her neckline a misdemeanor.
New York, Washington, Hawaii, and Florida, among other states, have enacted laws that specifically make it criminal to surreptitiously photograph or otherwise record images taken of a people's “intimate areas” without their consent. In general, these statutes define “intimate area” as parts of the body or undergarments covered by clothing in public and intended to be protected from public view. (For example, see Wash. Rev. Code §9A.44.115.)
Surreptitious photography laws usually require that the subject have a reasonable expectation of privacy at the time of the photograph. So, a patron at a strip club who snaps a shot of the topless pole dancer plying her trade probably has not violated that law, because the dancer, while semi-nude and even unaware of the photography, did not have a reasonable expectation of privacy. Privacy is the foundation on which laws against upskirting and other forms of surreptitious image recording are based.
It All Started With the Kodak Camera
In 1884, George Eastman of Eastman Kodak Company obtained a patent for the “snap” camera, a relatively portable, easy to use device that replaced the unwieldy tripod-based behemoths that required large glass plates to capture an image. The snap cameras could be carried anywhere and used paper film.
Motivated by concerns about the implications of widespread use of cameras on personal privacy, U.S. Supreme Court Justice Louis Brandeis co-authored an article that laid the groundwork for privacy law in this country. Justice Brandeis cautioned that photography had the power to invade intimate aspects of life that only a right to privacy, such as he proposed, could defend against. The advent of cell phone cameras and 24/7 social media exposure would seem to be the culmination of the esteemed jurist’s worst fears.
The very first upskirting case was literally that—in 1964, an Alabama newspaper photographer snapped a shot of a woman’s underwear when a gust of air at a carnival funhouse blew her skirt up, and his paper printed the image. (Daily Times v. Graham.) The woman sued the paper for invasion of privacy; the paper claimed that the publication of the image was protected by the freedom-of-the-press provision of the First Amendment. The Alabama Supreme Court ruled that, although the woman was in public at the time of the photograph, she did not forfeit her privacy where circumstances beyond her control exposed her to intrusive photography. The court noted that personal privacy must yield to the First Amendment at times, but found that there was nothing of “legitimate news value” in the image of the woman and thus it was not entitled to First Amendment protection.
As the Massachusetts decision revealed, the precise wording of a statute defines the parameters of the conduct it encompasses. As heinous as upskirting is, it may not be illegal in your state. Check the voyeurism and surreptitious recording laws in your state to find out. And check this site for developments in the law on upskirting.