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Mar 05 2014

No reasonable expectation of privacy

WHAT????

CNN reports the Massachusetts Supreme Court says upskirt photography is legal.

Massachusetts’ highest court ruled Wednesday that it is not illegal to secretly photograph underneath a person’s clothing — a practice known as “upskirting” — prompting one prosecutor to call for a revision of state law.

The high court ruled that the practice did not violate the law because the women who were photographed while riding Boston public transportation were not nude or partially nude.

Unnnnnnnh? Yes they were – under their clothes, they were stark naked. Remember that book title – Naked Under My Clothes? It was a joke, but – yes, if someone shoves a camera down your pants, you’re naked, which is why the someone shoved the camera down there. It’s the same with upskirt.

The ruling stems from the case against Michael Robertson, 32, who was arrested in 2010 and accused of using his cell phone to take pictures and record video up the skirts and dresses of women on the trolley, according to court documents.

Two separate complaints were filed against Robertson with the transit police. Authorities then staged “a decoy operation” to catch Robertson, who was eventually arrested and charged with two counts of attempting to secretly photograph a person in a state of partial nudity. Police observed him point a cell phone video camera up the dress of a female officer, court documents state.

Secretly – key word there. If the women wanted guys photographing their crotches, they would leave the skirt at home, or they would just invite guys to shove cameras up their skirts. When the aspiring photographers do it secretly, it’s a safe bet the women didn’t want them doing that.

Prosecutors had argued that the current statute, which prohibits secretly photographing or videotaping a person who is “nude or partially nude,” includes upskirting, according to documents.

But Robertson’s lawyers that the female passenger on the trolley was not “nude or partially nude” and was not in a place where she had a reasonable expectation of privacy, according to court documents.

Excuse me? Not in a place where she had a reasonable expectation of privacy in the sense of not having her clothes torn off or cameras shoved up between her legs? Really? Passengers on trolleys don’t have a reasonable expectation that they will be allowed to retain their clothes and not have strangers sticking cameras or phones under their hems? Silly me, I thought they did. I guess we should all solder everything closed before we get on the bus.

 

 

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  1. 1
    lochaber

    Pretty disturbing.

    I didn’t see much details of what was going on in the linked article, anyone else know much about it?

    Was the creeper doing anything like sticking a camera under a woman’s skirt, or was he taking pics of oblivious women who’s legs were angled in a way that he could see up their skirts from a normal seated or standing position.

    -Note, I’m not trying to victim blame or excuse his actions or anything. I think there is definitely something wrong with his actions, but I imagine depending on how he did this could cause some difficulties either writing or enforcing laws. -If he’s crawling under seats, or stuffing his camera under skirts, or something similar it should be fairly easy to target that type of behaviour, but I imagine if he’s doing soemthing like sitting across from a women in a skirt, and taking a pic when she crosses her legs or something, that would be more difficult to target.

    Then again, there are people who make their livings writing laws to target specific behaviour, so it shouldn’t be too difficult for them.

    But I am puzzled as to how they can argue that a person isn’t ‘partially naked’ from an upskirt perspective, as that’s not a perspective that the clothing is designed to cover/conceal against.

  2. 2
    Jeff Chamberlain

    The text of the decision is here: http://www.statehousenews.com/docs/2014/03-05_SJC11353_Robertson.pdf

    As I read it, the gist of the decision was that the MA statutory language did not cover the behavior for which the defendant had been arrested. Upskirting was “legal” because the statute didn’t specifically (enough) prohibit it.

    Similarly about “reasonable expectation of privacy.” The Court wrote that it was “eminently reasonable” that a woman on a trolley would have a reasonable expectation that no one would take photographs up her skirt, however on the Court’s view the MA statute did not prohibit that.

    There’s a good deal of comment to the effect that these perceived statutory loopholes are likely to be plugged by the MA legislature.

  3. 3
    Cuttlefish

    In public? And clothed? Clearly these are areas the law could not have anticipated! If she had been either at home, or naked, he’d have clearly been violating the law, but really, a woman out in public? Dressed? Can’t really blame the law for not considering that possibility…

    http://freethoughtblogs.com/cuttlefish/2014/03/05/upskirting-the-law/

  4. 4
    Marcus Ranum

    They are probably finding in this way in order to protect the surveillance state. With an expectation of privacy then you have to ask questions about all the spy cameras everywhere.

  5. 5
    Anne, Old Gumbie Cat

    Well, what did these silly females expect, going around all bifurcated in public like that? They should’ve jumped into proper concealing sacks and tied them up over their heads, or at the least around their necks if they just had to see where they were going, and hopped!

    /snark (because a vague disclaimer is nobody’s friend)

  6. 6
    lochaber

    Jeff Chamberlain>

    Thanks for the link. I don’t know if they had crappy prosecutors, or if the judge is a pedantic fuckwit, but that reasoning was pretty ridiculous. I’m also surprised they didn’t at least nail him with resisting arrest or disobeying a legal order from a police officer.

  7. 7
    SallyStrange

    I’m also surprised they didn’t at least nail him with resisting arrest or disobeying a legal order from a police officer.

    Why? Those charges are for innocent black people who fail to immediately kiss a random police officer’s ass on command. Obviously this guy is white.

  8. 8
    rq

    So every time I put on clothes, I’m giving those around me permission to see me naked. I get it now.

  9. 9
    Gregory in Seattle

    I have to agree with Jeff: my reading is that the court found the actions reprehensible, but not illegal under extant statutes. Washington State faced a similar situation in September, 2002, when the state Supreme Court ruled that the wording of then current state law — which stated that a person can be photographed or video recorded without consent while in public — made it impossible for them to uphold the charges against the two defendants. Their ruling, however, pretty much ordered the Legislature to fix this loophole, which they did early in the 2003 legislative session. The result was an amendment to the voyeurism statute, RCW 9A.44.115, making it a class C felony to view, photograph or film “The intimate areas of another person without that person’s knowledge and consent and under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place.

    To their credit, the Legislature passed this change as an emergency measure, “necessary for the immediate preservation of the public peace, health, or safety”, which put it into effect immediately upon the Governor’s signature and made it immune to referendum.

  10. 10
    Jackie

    As if public transit wasn’t dangerous enough for women and girls….

  11. 11
    left0ver1under

    Jackie, all dressed in black (#10) -

    As if public transit wasn’t dangerous enough for women and girls….

    In many countries where there are women-only buses and train cars (e.g. Japan, Philippines, Brazil, Taiwan, etc.) there have been males who complain that they’re being “treated unfairly” and “assumed guilty”. Such options became necessary because of rampant numbers of sexual attacks on public transport in said countries.

    I’ve been on such trains in Taiwan and Manila, in cars separated from women, and never felt “discriminated against”. Then again, I’m not one of those making separate cars necessary.

  12. 12
    dmcclean

    The SJC was right. They were outraged at the offender, but ruled for him as they should have.
    AIUI, a bill has already been introduced and passed in the General Court and in the state Senate, and should be signed today.

    The behavior here is despicable, and we should be outraged at the offender. But making the decision that it is illegal is for the legislature, not the courts.

    System is working.

    The clear flipside to “Not in a place where she had a reasonable expectation of privacy in the sense of not having her clothes torn off or cameras shoved up between her legs?” is that presumably there is no place that doesn’t carry that sense, and so the language doesn’t mean anything under that reading, which is generally a quite strong reason for disfavoring it as a matter of law. It may also be that ” A “place where [people have] a reasonable expectation of privacy” has one context-free meaning, and a T trolley is clearly not such a place wrt, say, search of belongings.

  1. 13
    Upskirting The Law » The Digital Cuttlefish

    […] have a freedom fetish in our culture. I don’t think even Michael Robertson‘s own lawyer would argue that what he is doing is good, or right, or admirable. But, since a […]

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