Massachusetts Court Says 'Upskirt' Photos Are Legal 519
cold fjord writes with this CNN report: "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."
Does not make sense (Score:5, Insightful)
Obviously, I imagine an upskirt picture does not reveal any more than what you would see at a beach in any western country. I think the issue is that, a person being made to reveal more of herself than she is consenting to, to a person she does not know, and usually without her knowledge. It would be the equivalent of someone being forced to take off her skirt in public without her consent.
Also, what if the woman is not wearing any underwear? It is her business if she is, or is not, and by wearing a skirt she has a reasonable right to privacy in that matter.
Re:A new law in not what is needed (Score:5, Insightful)
Re:Does not make sense (Score:2, Insightful)
If you are in public, you have no right to privacy. If you don't want someone taking a picture from an angle that allows the photographer to see your underwear, or lack thereof, don't wear clothing that allows them to do that.
Re:A new law in not what is needed (Score:5, Insightful)
It's time to remove these judges.
Nonsense. A judge's job is to interpret the existing law, not make stuff up to conform to what the law should be. If anyone should be removed, it is the state legislators, and it is the voters' job to remove them.
Re:A new law in not what is needed (Score:4, Insightful)
That is their job.
But when they do their job in a way that people disagree with, it's somehow time for impeachments and pitchforks and tomatoes.
Last week someone here referred to something as "unconstitutional". I pointed out that the Supreme Court, whose job it is to determine the constitutionality of things, felt otherwise. They stated that those 5 Supreme Court judged should be arrested and tried for Treason. Seriously.
Re:Does not make sense (Score:2, Insightful)
That viewpoint is, in my opinion at least, toxic and wrongheaded.
As far as I'm concerned, you should have a right to privacy until you explicitly say otherwise in the private domain, or a warrant has been issued in the law enforcement domain. If you have no privacy, what's to stop me from taking a picture of you right through your clothes with an I/R camera and posting pictures of your body all over the net? That's just the tip of the iceberg, too.
Re:A new law in not what is needed (Score:1, Insightful)
or, people could get over it. if it bothers you, cover it up. we don't need anymore laws.
Re:A new law in not what is needed (Score:5, Insightful)
....charged with two counts of attempting to secretly photograph a person in a state of partial nudity.
....state law "does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA."
While your argument is that it should be cut and dry illegal; the reality is: this specific law does not make it illegal. It has nothing to do with the judge, and everything to do with the way the law is written. The judge doesn't need to be removed, the law needs to be better written considering current technology.
Re:Does not make sense (Score:0, Insightful)
Then she should be charged with public indecency. What's good for the goose is good for the gander.
To the extent at which one must go out of one's way to violate that privacy, perhaps. If you sit down in a short skirt, it may be neigh impossible to make it "[just] her business" if she's wearing underwear or not. Or do we really want to play this game that allows males to wear kilts and flash people to their pleasure? Honestly, this all highlights the main problem with the issue--we have an obsession with nudity and.the idea that knowing how a person looks naked is both "[their] business" and indecent in public.
Well, if it were all legal, we'd still have the perverts who photograph people but we'd at least stop making a big court and news case of it as if it's not as old as early photography. And if it were all illegal, we'd effectively ban skirts and then the issue would mostly resolve itself--although then we'd get into the stupid situation where "crotch shots" are pornography--and not just for the kiddie porners--because the outrage would still be there and the perverts having been sufficiently thwarted in their efforts to a "real" danger will have moved onto the next best thing.
Perverts will be perverts, no matter how open or closed your are about clothing. And the thought police will run amuck to smack down the "undesirables" who often share high ranks with members of the thought police. Meanwhile, individuals will have to deal with creepy men and women because that's life, regardless of whether a law makes it a crime to photograph your crotch or for others to be "thuggish" or "disrespectful" towards you.
Re:Wait, what is this? (Score:5, Insightful)
This is the opposite situation. You're asking people to punish someone for something that is not (yet) illegal. The person that should be punished is the politicians for writing bad laws.
Re:Wait, what is this? (Score:1, Insightful)
I was going to mod you, but there isn't one for "dumb fucking cunt."
Re:A new law in not what is needed (Score:5, Insightful)
Agreed. A judge isn't supposed to decide what's right or wrong, but rather what's legal or illegal. Judges are just supposed to interpret the laws as written. If there's no law against something, then a judge has no recourse but to deem that thing legal. Even if any rational person would find it in poor taste.
It's then the job of Congress (aka the legislators, aka the law makers) to make a law that rectifies the issue. So expect results sometime between now and Judgement Day. Unless, of course, some senator (or senator's daughter) gets some upskirt pictures taken. Once lawmakers actually feel the effects, the law will be passed so quickly, it might just be signatures on the back of a napkin.
Re:A new law in not what is needed (Score:3, Insightful)
Re:A new law in not what is needed (Score:3, Insightful)
Not entirely true.
There is a law that says you can't photograph somebody inside a house (e.g., through a window) or in a similar place which is considered private property.
And the part of the body under the skirt can be considered to be in a private place.
You see, it is just how you interpret the law. The judge should do this in a way that conforms to expectations.
Following the law literally and blindly is not a good idea.
Re:A new law in not what is needed (Score:2, Insightful)
No, you're perfectly free to wear skirts but one of the consequences of wearing that garment is there is a risk someone may see (and by extension photograph) underneath it.
Note that choosing your undergarments with this risk in mind would render it a moot issue in both the obvious case of choosing undergarments you don't mid people seeing and the somewhat unintuitive case of making it illegal to take the photo if you go commando (as it would have been illegal if the subject were "partially nude").
Re:A new law in not what is needed (Score:5, Insightful)
people can wear skirts all they like, and choose how much or little they want to expose of themselves in public. if you re concerned about some out of focus dark weird angle shot of your panties, i'd suggest not wearing a skirt.
NO!- court says they are not "illegal" (Score:3, Insightful)
The tradition in English-speaking nations derived from Britain is that Laws define ILLEGALITY not legality. Therefore it may be the duty of a court to test an 'act' against the pre-existing list of laws to see if that 'act' corresponds to any of the lawful definitions of illegality. In this case, the court failed to find appropriate laws that defined the act of public photography, even with a clear lewd intent, as 'illegal'.
There is a darker side to this. Laws that restrict Joe Public have a nasty habit of restricting the 'authorities' as well. And Google stands behind the 'principle', backed by millions into the pockets of politicians, that what the eyes can legally see in public, a Google camera system should be able to legally film.
Usually 'upskirt' photography is punished using the catch-all "outraging public morality'. These broad laws were amongst the first- and are essential to reduce the pressure for mob justice seen in less civilised societies. The 'problem' with broad laws is that they may be subject to terrible abuse by local regimes that may have various axes to grind.
The 'problem' with narrow laws is that criminal types will exploit the cracks to create new forms of clearly anti-social behaviour.
And here's a question for you all. What about a person seemingly taking normal photographs, that exploit the transparency of certain clothing to Human invisible frequencies of light? Some dresses, and even under-wear are near perfectly removed by cameras that see in infra-red.
And what if TSA style body-scanning tech became available in a cheap camera form. Would you ban people from owning and using such sensors in public?
And what if vision algorithms were perfected that could 'imagine' the body beneath fairly form fitting clothing, and render a photo-real naked body based on video of a clothed person?
Although it isn't said openly, such laws really base themselves on how obvious, annoying and distressing the sexually motivated public photographer has been. But now prosecutors use a different strategy, seeking to suggest that the 'collection' of such imagery, regardless of 'awareness' of the 'victims' is enough to trigger a conviction. This means in most US states a prosecutor would expect to gain a conviction of a person who took 'reasonable' photographs of clothed women in public, and then used 'computer' methods in private to convert these into some form of naked imagery (without permission of the women), even if 'distribution' of these processed images was not involved.
Sex 'crimes' often have the dimension "the act really isn't a crime, but knowledge of the act makes it so". So a guy might fantasise about a woman at work, and pleasure himself in the bedroom thinking about this. BUT informing the woman the next day that this happened creates a clear potential societal problem- what earlier societies would have seen as an unacceptable breech of 'etiquette' rather than the direct breaking of a written law.
Behaving ourselves, for the greater benefit of society, is more than just observing written laws.
Re:A new law in not what is needed (Score:3, Insightful)
That is done by the constitution itself. That's the whole damned point of it.
The first amendment says that I can shout "fire" in a crowded theater.
The second amendment says that I can own an ICBM.
You seriously think that the constitutionality of everything is self-evident?
Re:A new law in not what is needed (Score:4, Insightful)
And if they ruled that a woman in a skirt qualifies as partially nude, they'd set a precedent that would allow women in skirts to be ticketed for indecent exposure.
Re:A new law in not what is needed (Score:4, Insightful)
. . so people cant wear skirts anymore? Sharia Law is over there . . . .
No. Get over your prudishness. If you want to flash it, like the girl in the microscopic Brazilian bathing suit that bent over to adjust her beach blanket last week in Miami, then flash it. If you're too prudish to do so other than when you've drunk half a bottle of alcohol to obliterate your self restraint, then that's your problem.
If you're not comfortable with wearing revealing clothing then don't wear it but don't whine that it's anyone's fault other than your own.
Re:A new law in not what is needed (Score:2, Insightful)
Agreed. A judge isn't supposed to decide what's right or wrong, but rather what's legal or illegal. Judges are just supposed to interpret the laws as written. If there's no law against something, then a judge has no recourse but to deem that thing legal.
My thought exactly. To me up-skirt photography and filming is a practice which if legislated in detail as illegal either will become far too broad in interpretation, creating too much of a slippery slope situation, or too narrow to have any effect beyond a politician being able to win votes for "thinking about the children."
There are times were simple acts of active social disapproval are far more effective and deterring than written laws ever can be. Up-skirt is one of them. Next time you see some one doing an up-skirt don't look away, look right at the person and make it clear you see him (or her) and do not approve. Social stigma often is a far better deterrent than any legislation, death penalty included.
Re:Now that's news for nerds (Score:5, Insightful)
"Too late, Mass Legislation has already passed the law banning upskirting. It's heading to the governor's desk. If not today, by tomorrow, it'll be signed and put into effect."
My take on it is very simple:
(A) If it's visible in public, it's fair game. (This is the only way really to square this with so many other free-speech issues.)
(B) Given (A) above, if you're not a public figure, someone else should not be able to publish those photos without your permission.
I think this is a fair balance between fairness, civil rights, and privacy. If you don't want it seen, don't show it. If you are out flashing it in public, you have no reason to bitch about it later.
Re:Does not make sense (Score:4, Insightful)
At what point do you draw the line between flashing in public then trying to sue the photographer, or just a little nip slip that you don't want published? Answer: there is no such point. It's too arbitrary. Wherever you try to draw that line, somebody is going to get in trouble over something they didn't intend to do.
The only rational place you can draw a line is to say: if you don't want it seen, don't hang it out where it can be seen.
Re:A new law in not what is needed (Score:4, Insightful)
The second amendment says that I can own an ICBM.
Perhaps you could argue that an ICBM is a bit too heavy to "bear", but for most of US history, artillery was privately purchased and donated to towns and cities for defense. IIRC as late as Teddy Roosevelt we'd go to war with artillery that just some guys bought, bought the mules to haul it, and brought with them to the war (in addition to what the army itself had, but that was often inadequate and the supplemental pieces were welcomed).
If you're uncomfortable with your neighbor owning an ICBM (I know I am), we can amend the constitution, using the mechanism provided. We should just creatively interpret it, because that is precisely what led to losing most of the protections in the Bill of Rights.
Because it's convenient to allow creative interpretation instead of actually amending the Constitution, we've lost much of the point of it all!
Re:It shouldn't be illegal even if they were nude (Score:4, Insightful)
No, that is absurd. But at the same time I am under no legal, dare I even say ethical, obligation to turn my gaze upon seeing you experiencing a revealing wardrobe malfunction, though it may be considered polite and kind to do so. In fact I might even gawk and make comments, possibly lewd comments, so long as I don't violate any local obscenity laws, though truthfully that would not be in my character. The exception is if this occurred in the workplace where sexual harassment laws apply. Others with morals derived from their religion or culture should follow their own conscious and answer to their own deities or communities for their behavior. But protecting American freedom is more important than protecting someone else's modesty. People need to take personal responsibility for their own modesty choices. That means if you want to push the edges of your local obscenity laws and wear the most revealing clothing possible, you should be able to do so and feel safe doing it. There is never an excuse for anyone to violate another based solely on their choice of clothing or lack thereof, even if they willfully violate all applicable obscenity laws. But in a public space you really have no right to demand that I turn my head and look away or stop taking pictures for my own personal use. As Americans we have the freedom to show it off and the freedom to see it all. I think most of my European friends would agree as well. To attempt to regulate morality, politeness, appropriateness, family values, religious beliefs, artistic expression, sexual expression, blasphemy, speech, political views, or published works would in the best case lead us to a situation like Northern Ireland in the 1970's, and in the worst case like Afghanistan under Taliban rule, which is why we do not do it.
Re:A new law in not what is needed (Score:4, Insightful)
If the law didn't specify what "partial nudity" means, then I think the ruling is perfectly valid. What is partial nudity? Can someone go out in public "partially nude?" Can they be arrested for that?
I don't think it's fair to use one the standard differently. A person should not be partially nude while out in public.
The error here is not on the judge's part, but on the legislature's. If the legislature had better defined their terms, there wouldn't be ambiguity. If they had specified that these kinds of photos were illegal, there wouldn't be a question here. They did not, and so the judges (who are upholding the law, not their opinions of it) made the right call.
Even if it means a pervert is still on the streets.
Re:Does not make sense (Score:5, Insightful)
The only rational place you can draw a line is to say: if you don't want it seen, don't hang it out where it can be seen.
That line gets a lot fuzzier if/when people start using infrared/ultrawideband/whatever to see through clothing. I suppose the argument then will be "if you're not encased in lead shielding every time you leave the house, you're pretty much asking for nude photos of yourself to be posted to the Internet".
Granted, that's not a problem yet, but the technology exists. The problem in both cases is that the difference between "what can be seen" and "what people think can be seen" is growing as technology advances. Skirts make an assumption that nobody will have a line-of-sight view from directly beneath you -- an assumption that was never entirely valid, but is a whole lot less valid now that technology has given people access to discreet digital cameras that they can easily position at floor level.
Marbury v. Madison (1803) (Score:5, Insightful)
The actual power given to them by the constitution is the usual judicial power. Or in other words: guilty, not guilty, adjudication withheld, case dismissed, etc. They have original jurisdiction in cases that involve the states, ambassadors and so forth. Nowhere does the constitution say or imply they can declare a law unconstitutional. That is done by the constitution itself. That's the whole damned point of it.
You need to really read Marbury v. Madison (1803). The Court really lays out the reason why they have to. The judges must hold every law up to the standards of the Constitution, if they do not judge the Constitutionality of laws, then the Constitution has no meaning, because Congress can pass any law they feel like, and there is no one else who can say, "Hey, I don't think that law is actually legal."
Without anyone to actually enforce the Constitution, it's a meaningless piece of paper.
The constitution is written in plain English.
That's actually, in many ways, the problem. If the Constitution were written out in far more formal language, there would be less wiggle room and thus less need for interpretation.
Re:Does not make sense (Score:3, Insightful)
Wherever you try to draw that line, somebody is going to get in trouble over something they didn't intend to do.
Meh, the courts are for those edge cases.They make a judgment based on the unique individual circumstances whether the law was violated or not.
In this case the guy was clearly trying to take pictures up her skirt so its simple. He's a creep. Guilty. Big fine + community service or whatever.
If some chick is wearing a shirt that's too loose the wind catches it, and you happen to catch a nip slip or something you clearly, no big deal, judge tells you to delete the picture. If you aren't a giant douchebag you probably offered to delete it as soon as you'd been made aware that you'd inadvertently caught that image, and it never went to court at all.
On the flipside, if you fight it, and it comes out that you run a website of all the nip slips you've taken and there's other evidence that you deliberately go around trying to find circumstances to take advantage of to get such shots, and this is the 5th woman to have sued you for taking such pictures then you get upped the creep-meter and your in good company with the blatant upskirt guy.
This is part of what judges are FOR.
The only rational place you can draw a line is to say: if you don't want it seen, don't hang it out where it can be seen.
Rational people don't draw a line. Rational people allow that the edges of what we want and don't want as a society are blurry and leave it to judges to resolve any disputes case by case.
Re:A new law in not what is needed (Score:2, Insightful)
Some women find it entertaining or exciting to wear a skirt with no panties. It's kind of a thing. Oh, and also, their boyfriends are near-unanimously supportive of this. Aside from that, it is really every woman's right to dress as she wishes, based upon the expectation of viewing-angle privacy that the world generally adheres to.
If creepos with tennis-shoe mirrors and pole-mounted cameras want to ruin it for the rest of us... well, then, they should be shot or put in jail. To wit; if my girl decides to stop occasionally going panty-less (exciting to both of us) because of a few pervs, then this idiotic up-skirt photography behavior should be stopped.
This is why we can't have nice things.
Re:A new law in not what is needed (Score:1, Insightful)
If creepos with tennis-shoe mirrors and pole-mounted cameras want to ruin it for the rest of us... well, then, they should be shot or put in jail. To wit; if my girl decides to stop occasionally going panty-less (exciting to both of us) because of a few pervs, then this idiotic up-skirt photography behavior should be stopped.
The world doesn't revolve around your sex life, nor should it. Tell her to put some fucking clothes on when she goes out and she'll be fine.
Why should the rest of society run around preventing unintended consequences of women's (or anyone's, really) dumb personal choices? If she chooses not to plan ahead and ends up wearing short skirts without underwear while riding a train, whose fault is that?
Re:A new law in not what is needed (Score:5, Insightful)
Some here seem to think that the only types of skirts around are the ones that are so short that barely anything is hidden. Skirts come in different lengths. Perhaps the woman thought she was covered up and the skirt hiked itself up in just the right way so that something was visible. Perhaps the pervert just used shoe cameras, pretended to be stooping on the ground to tie his shoes, or some other ploy to take photos up women's skirts. The women obviously didn't consent to this so he shouldn't be allowed to do this.
Don't get me wrong. I understand that you don't get to walk around outside and then claim people taking your photograph are invading your privacy. There's no reasonable expectation of privacy when you are walking outside, but there are limits to that. Everyone has a reasonable expectation of privacy under their clothes. A woman wearing a skirt is not an invitation to take a photo up the skirt any more than a man wearing shorts is an invitation to take a photo up the shorts leg.
Re:A new law in not what is needed (Score:5, Insightful)
Wait. This actually makes sense. Only instead of coding perfectly legible code, legislators are the kind of coders that craft spaghetti code which has tons of bugs, unforeseen glitches, hidden functions to give their friends back doors through the system, and which can't be read by another human being without them going cross-eyed.
Re:Now that's news for nerds (Score:5, Insightful)
My take on it is very simple: (A) If it's visible in public, it's fair game.
But this is *not* visible in public from a normal human viewing angle. And the typical case that makes news is someone having a camera on a shoe, or suspended from their hand (in a bag or briefcase, for example), to get an angle that a human would only get lying on the floor - not a typical posture in public.
By the way, how do you feel about Google Earth vans putting their cameras on top of a van higher than the typical fence? Or someone floating a camera drone outside your bedroom window? It's the same argument, from above or below: Yes, you're in public, but we have a convention of viewpoint being within a normal range, and if you go out of your way to get an improper viewpoint you're a "Peeping Tom".
Re:A new law in not what is needed (Score:2, Insightful)
Re:A new law in not what is needed (Score:4, Insightful)
if my girl decides to stop occasionally going panty-less (exciting to both of us) because of a few pervs, then this idiotic up-skirt photography behavior should be stopped.
What exactly about doing this makes it exciting if not for the real risk of someone noticing? If that risk didn't exist, it would be no different than going commando with jeans.