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Massachusetts Court Says 'Upskirt' Photos Are Legal 519

Posted by timothy
from the just-because-you-can dept.
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."
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Massachusetts Court Says 'Upskirt' Photos Are Legal

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  • by KingTank (631646) on Thursday March 06, 2014 @06:16PM (#46423541)
    BRB got some photography to do.
    • by sixshot (878181) on Thursday March 06, 2014 @06:50PM (#46423887) Homepage

      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.

      • by Jane Q. Public (1010737) on Thursday March 06, 2014 @07:56PM (#46424445)

        "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.

        • How do you determine who isn't a public figure?

        • by DutchUncle (826473) on Friday March 07, 2014 @01:19AM (#46425801)

          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".

  • USA! USA! (Score:5, Funny)

    by michael021689 (791941) on Thursday March 06, 2014 @06:19PM (#46423573)
    The reaction to this will dwarf the reaction to all that NSA business. This is the pointless stuff that Americans really like to fight over.
  • by aevan (903814) on Thursday March 06, 2014 @06:19PM (#46423581)
    "A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is 'partially nude,' no matter what is or is not underneath the skirt by way of underwear or other clothing,"

    Police soon noted an uprise in kilt-wearing flashers~
  • by tempestdata (457317) on Thursday March 06, 2014 @06:20PM (#46423587)

    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: (Score:2, Insightful)

      by Anonymous Coward

      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.

      • Dude, that is absurd. Even a BURKHA / ABAYA is vulnerable from some angle.

        • by Jane Q. Public (1010737) on Thursday March 06, 2014 @08:06PM (#46424501)
          I don't think it's absurd at all. Because there is no place you can draw a solid line. You could say, "Well, yeah, in the picture my vagina was clearly visible, but I WAS wearing shorts!

          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.
          • by Jeremi (14640) on Thursday March 06, 2014 @09:00PM (#46424801) Homepage

            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.

            • by Macgrrl (762836) on Thursday March 06, 2014 @09:20PM (#46424917)

              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.

              In some respects it's like circumventing DRM - an effort was made to conceal (wearing a skirt), but someone deliberately positioned themselves in a abnormal position closer to the floor in order to create a line-of-sight that would not generally be available through normal activity.

          • Re: (Score:3, Insightful)

            by vux984 (928602)

            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

            • "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."

              No, they're not. Cases should be tried "on an individual basis" only when there is no reasonable alternative. As someone else in this thread posted (quoting the Supreme Court): laws are intended to be specific precisely because that tells people what is acceptable behavior, what is not, and precisely where that line is... so they don't cross it.

              When you make laws such that nobody knows where the line is, people will step over it. Always. They do. Simply because they weren't clearly told not to.

              Even in

              • by vux984 (928602)

                When you make laws such that nobody knows where the line is, people will step over it. Always. They do.

                That is all laws all the time, ever. From the 10 commandments on down to modern meat processing regulations.

                According to this, a woman in a miniskirt with no underwear is not 'partially nude'. Now, don't try to tell me "But... but... it says 'covering these parts'" because if it is covering those parts adequately then they can't be photographed anyway.

                Unless all your clothes make an air tight seal around a

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        If you are in public, you have no right to privacy.

        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.

    • Obviously, I imagine an upskirt picture does not reveal any more than what you would see at a beach in any western country.

      It's not about what is visible and what isn't. It's about technologically equipped perverts intimidating women on public streets and public transport, for their own personal kicks. It's about people doing something wrong because it offends another person. If you allow this kind of behavior to go unchecked, worse will follow.

  • by Ardyvee (2447206) on Thursday March 06, 2014 @06:20PM (#46423601)

    I can't really say the ruling is wrong or bad. Instead, and quoting from TFA, "If the statute as written doesn't protect that privacy, then I'm urging the Legislature to act rapidly and adjust it so it does."

    Now, question to slashdotters who are not a lawyer but know the law better than me: wouldn't there be any other way the victims would be able to convict the photographer? Couldn't they claim that amounted to harassment or something? Or... well... anything?

    • wouldn't there be any other way the victims would be able to convict the photographer? Couldn't they claim that amounted to harassment or something? Or... well... anything?

      Catch the perv in the act, you might be able to convict them in the court of public opinion with some good ol' fashioned shaming.

      • Catch the perv in the act, you might be able to convict them in the court of public opinion with some good ol' fashioned shaming.

        Worked on Paul Reubens.

    • by mrsquid0 (1335303)

      In the US if you are in a public place then you can be photographed (or videoed) without your consent and the photographer can do almost anything that he or she wants with the photographs. One of the few exceptions is if the photographers are using the pictures for commercial purposes, but even that is somewhat fuzzy. Perhaps the victims could claim that the photographers deliberately caused them emotional anguish, then they may be able to pursue a civil suit. Not a lawyer. Do not play one on tv. Consult re

    • by goodmanj (234846) on Thursday March 06, 2014 @06:49PM (#46423879)

      Just to emphasize your point: the judge in this case is not trying to let the accused off the hook: he/she is pointing out a hole in Massachusetts law.

      I'm totally not a lawyer, but I live in Massachusetts and spent some time reading the law today so that makes me an expert. As far as I can tell, upskirt doesn't fall within any of the following Mass sexual crimes:

      Rape: Rape in Mass requires penetration.
      Indecent assault and battery: Requires physical contact.
      Sexual harassment: is specific to the workplace.
      Peeping tom: requires that the victim be partly undressed.
      Criminal harassment: must be repeated on three occasions.
      Unnatural and lascivious acts: applies to sexual acts in public.

      It really does seem to me that as far as criminal law goes, upskirting really does fall between the cracks of Massachusetts law.

      • upskirting really does fall between the cracks of Massachusetts law.

        That deserves a comic-sketch.

    • They could print an EULA on their panties. "By photographing these panties you agree..."

  • by daveywest (937112) on Thursday March 06, 2014 @06:23PM (#46423621)
    No the way I would go about getting a new law named after myself, but to each his own.
  • by Anonymous Coward on Thursday March 06, 2014 @06:33PM (#46423719)

    Dateline: 3/56/2014 5:24PM
    The Massachusetts Legislature just passed a revision to the law which has now been sent to the Governor for his signature.
    http://www.wcvb.com/news/upskirting-bill-passes-moves-on-to-governors-desk/24845520

  • Summary Terrible (Score:5, Informative)

    by Stormy Dragon (800799) on Thursday March 06, 2014 @06:40PM (#46423797) Homepage

    They didn't rule that taking the photos was legal (i.e. you have a right to do it which cannot be abridged); they ruled it wasn't illegal (i.e. the legislature hasn't banned it even though it's within their power to do so).

    • Further, the court specifically said they felt it SHOULD be illegal to take an 'upskirt' photo.

      The hooplah over this is patently ridiculous and demonstrates the lack of ethics in modern journalism - or the desperation for pagehits, something we used to only see among bloggers.

      My main concern is that in the rush to "fix" this, someone screws up the law and ends up making it unconstitutional or otherwise overly broad.

  • Rule of Law (Score:5, Interesting)

    by BarefootClown (267581) on Thursday March 06, 2014 @06:42PM (#46423821) Homepage

    This is a good thing for anybody who believes in the rule of law. Laws should be written to clearly put those governed on notice as to what behavior is prohibited. Pervy or not, if the photographer was within the actual letter of the law, he shouldn't be be held criminally liable for doing something which was not prohibited. The solution is not to "interpret" the law to extend beyond its text; the solution is to fix the bad law.

    If laws can be "interpreted" to go beyond their plain meanings, then it becomes difficult for those subject to them to figure out what is prohibited. Not only is it patently unfair to hold someone accountable for an action that wasn't listed as prohibited, there is a strong constitutional precedent for holding it "void for vagueness." See, e.g., Connally v. General Construction Co., 269 U.S. 385, 391 (1926):

    [T]he terms of a penal statute [...] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

  • So this ruling is implying that if these people were nude in public it would be illegal to take photos of them?
    But since they were wearing cloths, it is legal to take nude photos of them?

    • by idontgno (624372)

      I guess.

      "You were trying to protect what used to be called 'modesty' in the olden days. You failed. So it's your fault."

      As opposed to "You're nekkid. That's indecent exposure. So it's your fault. But we'll also arrest anyone taking pictures of you."

    • I think Peeping Tom requires partial nudity in a place with an expectation of privacy (e.g. through a window).

    • What surprises me is that it is presumably illegal to stick your head underneath a woman's skirt without her permission, and yet the same does not apply if you're using a camera. If there's no right to privacy, is there at least a right to personal space?

  • by ArcadeMan (2766669) on Thursday March 06, 2014 @06:57PM (#46423963)

    Now, to get this court ruling pass in Japan....

  • 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."

    What if they were? What if they're not wearing panties, what then?

    • by idontgno (624372)

      In that case, they're still not nude... because "upskirt" pretty much requires the presence of a skirt. And if you're wearing a skirt, you're not nude.

      I gotta wonder about the meaning of "partially nude", though. Unless you're completely burqa'd up, you're showing SOME naked flesh. Why isn't that partially nude? Or does "partially nude" mean "we know it when we see it"?

      I hate stupid subjective ambiguous laws.

      • by AK Marc (707885)
        Partially nude consists of someone in the state of undress. If they are taking their panties off on the bus, then they are "partially nude". If the neglected to put them on in the morning, then they are fully dressed.
  • Photographing things publicly visible is fine, but what is inside of a dress is not publicly visible.

  • by Anonymous Coward on Thursday March 06, 2014 @07:14PM (#46424153)

    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.

  • Not as long as police can freely invade your privacy and record you and photograph you when you are in public. It has been well established, by police, that you do not have an expectation of privacy in public.

    These clothes are chosen because they are sexy. They are sexy BECAUSE in certain moments and with certain movements you can see down the blouse and up the skirt and everyone knows it so choosing to wear these clothes is choosing to let random strangers catch a glimpse. People are allowed to photograph
    • by geekoid (135745)

      Now tell us how it's women's fault they get raped for dressing 'sexy'.

      • by Sentrion (964745) on Thursday March 06, 2014 @08:32PM (#46424651)

        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.

  • by PopeRatzo (965947) on Thursday March 06, 2014 @07:21PM (#46424211) Homepage Journal

    I guess it's time for me to get that Brazilian wax.

    It's important to put your best foot forward.

    • by mjwx (966435)

      I guess it's time for me to get that Brazilian wax.

      It's important to put your best foot forward.

      What you're trying to say is that you don't like Bush.

  • ...going commando in a skirt is now indecent exposure?

  • A bill has been sent to the governors office and he is expected to sigh.

    It's Pub sponsored, so, you know, excessive prison time, but there you go.

    • What is disturbing about the bill is that it applies to women and children only. It does not protect skirt wearing men. The Scottish Clans protest!

  • There were some glass stairs, and there were some creeps taking upskirt pictures of cosplayers. It was creeping people out. But before they had to go to the police, they tried a simpler solution: They asked Sailor Bubba if he'd be willing to walk up and down those stairs for a while.

    Note: He does not wear underwear under his sailor suit.

    The creeps left.

    Sailor Bubba is a fairly cool guy.

"And do you think (fop that I am) that I could be the Scarlet Pumpernickel?" -- Looney Tunes, The Scarlet Pumpernickel (1950, Chuck Jones)

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