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Mass. Legislature Strikes Back: Upskirt Photos Now Officially a Misdemeanor 256

Posted by timothy
from the banned-in-boston dept.
Just a day after a Massachusetts court said that current state law didn't specifically address "upskirt" snapshots (and so left taking them legal in itself, however annoying or invasive), an alert Massachusetts legislature has crafted and passed a bill to fix the glitch, and gotten it signed by the governor as well. As reported by the BBC, "The bill states that anyone who 'photographs, videotapes or electronically surveils' a person's sexual or intimate parts without consent should face a misdemeanor charge. The crime becomes a felony - punishable by up to five years in prison and a $10,000 fine - if the accused secretly takes indecent photographs of anyone under the age of 18." The New York Daily News points out this bill became a law without so much as a public hearing.
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Mass. Legislature Strikes Back: Upskirt Photos Now Officially a Misdemeanor

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  • no surprise (Score:2, Offtopic)

    by daniel23 (605413)

    Thou shalt not make thee any graven image.

    • by ichthus (72442)
      What does forming idols for worship have to do with this?
    • Re:no surprise (Score:5, Insightful)

      by Anonymous Coward on Saturday March 08, 2014 @11:20AM (#46434589)
      So if I'm recording my girlfriend at the beach and some topless 5 year old girl wanders through the frame or happens to be in the background and her mom gets a bug up her ass about it... I'm charged with a felony? No thanks. If you don't want to chance it ending up on film, don't make it visible in public.
      • Re:no surprise (Score:5, Insightful)

        by noh8rz10 (2716597) on Saturday March 08, 2014 @11:26AM (#46434611)

        I got four letters for you:J-U-R-Y. A panel of reasonable people will be able to interpret the meaning of the upskirt law, and be able to differentiate between pervs on the subway and accidental photo bombs the beach. That's the whole point of juries and why they are such an important part of the justice system. No need to be a slippery-slope absolutist.

        • Re:no surprise (Score:5, Insightful)

          by arth1 (260657) on Saturday March 08, 2014 @11:30AM (#46434633) Homepage Journal

          When it comes to cases of moral, juries are worse than worthless. No one will stand up defending the rights of a potential sexual predator, even if probably innocent. Whether there's actual guilt or not, the jurors are under a tremendous social pressure to not appear to defend child pornography.

          I am fairly certain that lawyers strongly recommend that defendants should do pretty much anything to avoid a jury trial, even if innocent. Because they will be found guilty.

          • Re: (Score:2, Troll)

            by sconeu (64226)

            Believe it or not, juries sometimes actually DO the right thing, even when sexual predators are involved.

            WARNING: Anecdotal evidence follows:

            About 15 years ago, I was the jury foreman on a particularly disgusting case... the guy was accused of doing his daughters. We were only able to convict him of one count: "Contributing to the delinquency", because we all agreed that he showed his daughters porn.

            We hung on 4 other charges, oddly enough with 4 different splits. On one of the charges, I was one of tho

            • because we all agreed that he showed his daughters porn.

              So?

              • by murdocj (543661)

                Please do NOT come out of your parent's basement.

              • by arth1 (260657)

                I guess it would depend on the reason for showing it. I think parents should show and explain porn to their children before they inevitably get hold of it with no-one to explain. I'd rather them know that they're not to expect the monster penises they see in porn, and nor do most women really want said monster penises jammed up their rectum, and that it's perfectly fine to not act like the women in porn.

                But showing porn to children in order to turn them or yourself on seems wrong.

          • by CODiNE (27417)

            Yeah that's great. Take a photo of a toddler just as she yanks her dress over her head and you're a felon. "AHHHH!! DELETE!! DELETE!!!"

        • Re:no surprise (Score:5, Informative)

          by JBMcB (73720) on Saturday March 08, 2014 @11:31AM (#46434637)

          Sure, it'll just cost you $10,000 for a lawyer.

        • Read this (Score:5, Informative)

          by Anonymous Coward on Saturday March 08, 2014 @11:50AM (#46434739)

          You Commit Three Felonies a Day [wsj.com].

          If I look closely at you and your life, I will find something to incriminate you.

          I have NO doubt what-so-ever.

          So, about this being a "slippery-slope absolutist"?

        • Re:no surprise (Score:5, Insightful)

          by sjames (1099) on Saturday March 08, 2014 @12:04PM (#46434805) Homepage

          If only you could benefit from that before you spend your life savings on a lawyer (non-refundable), get fired, and have your name dragged through the media.

          That and if judges would stop trying to weed out jurors that believe in nullification.

          At one time, prosecutors usually did a decent job of not prosecuting the obviously innocent (or perhaps we just didn't hear of their misconduct as much), but these days they seem to have little care for guilt or innocence as long as they get their conviction.

        • by nbauman (624611)

          It takes more than four letters to answer you, but I wouldn't want my life to be in the hands of the juries on some of those day care sex abuse cases. And I wouldn't want to spend my life savings on legal fees. Would you?

          https://en.wikipedia.org/wiki/... [wikipedia.org]

        • by fyngyrz (762201)

          I got four letters for you:J-U-R-Y

          I got some letters for you, too: Voir dire. This is the process wherein lawyers weed out all your peers in favor of compliant idiots. That's not what it's supposed to do, of course, but that's how it's used. It's then almost always followed by admonishment by the judge to the effect that the jury has to apply the law as written, with nothing at all about the jury's actual duty to evaluate the law -- in fact, if that's brought up, likely you'll have a mistrial.

          If you go to

        • by sumdumass (711423)

          A jury in principle can ensure right from wrong. But the reality is that no one would ever consider what a jury might do in the months leading up to your trial when the prosecutor and the mom with a bug up her butt drags your name through the press as the perv and pedophile this law would claim you are.

          So yes, a jury should be a save, but the cost of that save could be impassible. Imagine if you were a school teacher who took a pic of his girlfriend at the beech, you job would be almost lost and you would h

      • Not at all what the law covers. No clandestine photographing being done. What a lame extreme to promote.
      • Re: (Score:2, Informative)

        by Anonymous Coward

        Here, you should RTFL:

        https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section105

        Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person’s knowledge and consent, shall be pun

      • by kheldan (1460303)
        You must be a "rules lawyer" type of RPG player, the kind that ruins the whole game for everyone quibbling with the DM throughout the entire campaign over the wording of the rules, just so you can get your way.

        There is the letter of the law, then there is the spirit of the law. In a properly governed society, the latter is the norm, and in your fictional-but-plausible scenario, the cop who you ended up talking to would realize that it was accidental and innocent, and nothing more would come of it.

        So far a
        • by AK Marc (707885)
          The problem is that if the cops ever *want* to get you, then they will interpret them exactly how you say is not normal.

          I've been pulled over for DWB (driving while black), though I'm white. The law allows any cop to pull over anyone at any time "I thought your inspection sticker was expired" (though it was 2 months into a 12 month period). He "hides" on a cross street, and pulls over anyone that doesn't "fit in". In the day, that's black people. At night, that's someone in a car that doesn't fit in.
      • by AK Marc (707885)
        It's already a federal felony, and this law doesn't change this at all. At most, this law, as it says in the summary, is a misdemeanor, not a felony.
      • by jklovanc (1603149)

        How about you look at the actual law [malegislature.gov];

        Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person’s clothing to view or attempt to view the person’s sexual or other intimate parts when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public and without the person’s knowledge and consent,

        Your scenario does not fit on 3 points:

        with the intent to secretly conduct or hide such activity

        Unless you hide your camera, you are in the clear.

        under or around the person’s clothing

        A bare chest has no clothing for the photograph to be under or around.

        a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public

        A bare chest is obviously visible to the public

      • People have been treating anyone that takes a camera to the beach as a felon for about a decade anyway.
    • OK, if she stands still long enough for someone to carve or sculpt a likeness then I gotta think she's kinda into it...
      http://dictionary.reference.com/browse/graven [reference.com]
  • by Etherwalk (681268) on Saturday March 08, 2014 @11:18AM (#46434575)

    Age difference should matter when you're talking about people under 18. A sixteen-year-old who does this to another 16-year-old should be guilty of no more than a misdemeanor if an adult would be guilty of no more than a misdemeanor for the same behavior with another adult.

    • by RJFerret (1279530)

      Normally I'd agree, except this specifies non-consensual, and there's a societal desire to not produce child porn for the consumption of anyone, child, teen, or adult.

      A 16-year old agreeing to such is apparently legal per this law.

      Similarly, if it were permissible for children to photograph any age, then adults would simply coerce children to do the dirty work.

    • by wvmarle (1070040)

      A 16yo doing this shouldn't be tried as an adult to begin with.

  • wow (Score:3, Funny)

    by Yew2 (1560829) on Saturday March 08, 2014 @11:19AM (#46434581) Homepage
    if only developers fixed glitches this fast.....or any other governments for that matter
    • "(e) This section shall not apply to a law enforcement officer acting within the scope of the officer’s authority under applicable law, or by an order or warrant issued by a court."

  • by ATMAvatar (648864) on Saturday March 08, 2014 @11:32AM (#46434645) Journal

    Despite the prior news story about a guy getting off for upskirt photos, this law seems like a solution looking for a problem. Has upskirt photography been such a large problem in Massachusetts that a law was required?

    I would have thought basic social pressures and shaming (lets admit - people doing this *are* particularly creepy) would do a better job at limiting the number of offenders, and the rest would do it anyways.

    With a law on the books, particularly one with the possibility for felony charges, I wonder how many times we are going to read about misapplication of the law. Do you technically run afoul of the law anytime you take a photo where a woman in a skirt is elevated from your current location, such as a place with an elevated walkway? Do you risk arrest for taking a picture in a location with an escalator or glass-walled elevator like many shopping malls? even if you are close to neither one?

    • by nbauman (624611)

      Like Marilyn Monroe walking over a subway grate.

      Pervs click here http://ibnlive.in.com/news/mar... [in.com]

    • by jklovanc (1603149)

      Read the whole law [malegislature.gov] before drawing conclusions.

      Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person’s clothing to view or attempt to view the person’s sexual or other intimate parts when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public and without the person’s knowledge and consent,

      Most people take innocent photographs while holding their cameras near eye level where the camera is visible to everyone around. Your scenario fails the " with the intent to secretly conduct or hide such activity" clause. You would also have to get photos of her "sexual or other intimate parts [not]visible to the public". Then there is the most important point;

      Whoever willfully photographs, videotapes or electronically surveils,

      If the photograph is from a distance and/or not centered on the subject it would be simple to show that

    • by AK Marc (707885)
      I could put a camera in my shoe that would be invisible to a passing glance. How do you shame someone for doing something you don't (and can't) know they are doing?
    • by NoKaOi (1415755)

      Despite the prior news story about a guy getting off for upskirt photos, this law seems like a solution looking for a problem. Has upskirt photography been such a large problem in Massachusetts that a law was required?

      In short, yes, it's been a problem in general for a while, enough so that camera phones are have been required for about 5 years by federal law (the Camera Phone Predator Alert Act) to make a noise when they take a picture to make it harder to sneak an up skirt photo on the subway.

      Do you technically run afoul of the law anytime you take a photo where a woman in a skirt is elevated from your current location, such as a place with an elevated walkway? Do you risk arrest for taking a picture in a location with an escalator or glass-walled elevator like many shopping malls? even if you are close to neither one?

      Assuming you mean somebody accidentally captured an up skirt photo in the frame, then no. Not only would there be no criminal intent in that case, but according to TFA "The legislation says anyone who tries to photograph another

  • by superwiz (655733) on Saturday March 08, 2014 @11:38AM (#46434679) Journal
    With all the talk of "gridlock", it's there so that law is not used to enforce ideas that are not clearly shared by the majority of the population. When something clearly needs to be made into law, there is no gridlock. This thing took 2 days to go from "oh, shit I can't believe it's legal" to "there is a law to stop this now."
  • TSA Beware (Score:4, Interesting)

    by Anonymous Coward on Saturday March 08, 2014 @11:46AM (#46434723)

    Any airports or ports in Mass?

    If so TSA beware, imaging my junk without my express permission is now a felony in Massachusetts.

  • by Snotnose (212196) on Saturday March 08, 2014 @11:50AM (#46434743)
    Considering it took less than 24 hours to make this law you know it's a heaping pile of garbage. It takes time to craft a good law, more than 24 hours.
    • If a law is made this quickly, it could ALSO mean it just seems like such a common sense thing to the people involved, there's really nothing to argue about.

      Personally, I think I'd rather have legislation made this way (flawed though it may be) than people passing multiple hundred page long bills that NOBODY could read through and fully understand before they're voted on.

      Simple, quickly passed legislation can also be easily understood by juries and amended, as needed. The massive stuff with hundreds of hidd

      • by nbauman (624611)

        It could but it usually doesn't.

        What you see is a lot of judges writing, "This law is clearly unfair and was not intended to apply in this situation, but much as I hate to, I'm forced to follow the law, and sentence you to ten years in jail."

        A law making it illegal to photograph the "intimate parts" of women and children in public. What could go wrong? http://www.shutterstock.com/pi... [shutterstock.com]

        Actually, in Massachusetts and a few other states, there were laws requiring photo processors to turn photos over to the pol

    • by nbauman (624611)

      Yes brilliant. The prosecution was thrown out by the courts because the law was badly written, so they pass another law without hearings, and without giving lawyers a chance to look over it and figure out how to get it right this time.

      • by jklovanc (1603149)

        You have no idea how many lawyers looked at the law. It could have been worked on for years starting at the time the appeal was files. Do you really think that people who write laws only show them to lawyers at public hearings? Most laws are written by lawyers. The legislators just pass them. Sure some laws have loopholes but laws are not written in a vacuum.

        • by nbauman (624611)

          A democracy works in public.

          If you're going to pass a law that will give prosecutors the power to put people in jail and mess up their lives, you should have public hearings where you tell everybody what you're going to do and let them bring up any objections or improvements that you may not have thought of. And in this law there are many.

          A democracy doesn't work in secret.

          • by jklovanc (1603149)

            A democracy doesn't work in secret.

            I don't see how a public vote is considered secret. I vote in people to make day to day decisions that I would make. Voting for a bill that clarifies this kind of privacy violation is exactly why I vote for my representative. I do not need to have input on every law made. I vote for people who think like me. If they deviate too far I vote for someone else next time.

            And in this law there are many.

            Have you actually read the law [malegislature.gov] or just the summary? Do you have improvements? If so, what are they? I have read the law and it actually looks p

    • by jklovanc (1603149)

      The initial arrest was in 2010 and the current ruling was an appeal. It is quite possible the this law has been in the works for a couple of years, starting at when the case was appealed. It is quite possible that the lawmakers were waiting to see if the current law was sufficient before introducing changes. Why pass a law that is already covered under current law?

  • "the sexual or other intimate parts"

    • by RJFerret (1279530)

      Interestingly, leaves the determination of legality up to the subject, rather than the overt act: wear panties, no crime; go bare, gotcha'!

      • also the length of the skirt in question.

        and if the wind blows the skirt up while you are taking a picture already.

        Or the lady in question falls down and exposes themselves.

    • by _xeno_ (155264)

      That's a term that they define earlier in the law [malegislature.gov], and they're quite clear:

      "Sexual or other intimate parts", human genitals, buttocks, pubic area or female breast below a point immediately above the tip of the areola, whether naked or covered by clothing or undergarments.

      Well, maybe not "quite clear" but it's not like "sexual or other intimate parts" is the phrase that determines the meaning of the law.

      • So the media report introduced inaccuracies in their summarisation. Nothing new there. I should have seen that one.

        Still poor though, as the 'covered by clothing' part, combined with modern teenage fashions, means a lot of young women are now going around in such a manner that any picture of them is now one stop short of child porn.

  • i hope they defined indecent or they are still in the same boat

  • by flogger (524072) <non@nonegiven> on Saturday March 08, 2014 @12:10PM (#46434837) Journal
    Welcome to modern politics. Politicians do whatever they want and don;t need to consult the public at all. And when motivated enough, these politicians can pass all sorts of legislation in a day. In the recent past Illinois lawmakers introduced a bill requiring teachers to teach until they are 67; passed the bill in both house and senate; had the bill signed by the governor. All of this in one single day. Teachers union, was shocked and has been fighting this ever since, but since it is "the law" they don;t have a lot to go on. Everyone else in Illinois has been on pins and needles knowing that the government can in a day vote your career into misery.
    • Re: (Score:2, Insightful)

      by Anonymous Coward

      The teachers are going to have to work until 67, just like the rest of us? No wonder their union is upset.

    • by _xeno_ (155264)

      Welcome to modern politics. Politicians do whatever they want and don;t need to consult the public at all.

      Meh, I'm not sure that really applies in this case. The law that was passed [malegislature.gov] is basically a patch. And, like so many laws, I mean that quite literally: it's a list of insertions and deletions into the existing legal code.

      Basically the Supreme Judicial Court said that a certain activity that was clearly intended to fall under the law didn't, because of the way the law was written. So the legislature fixed the wording of the law.

      All the public debate had already happened, this was just a "bug fix," so to speak

  • by tomhath (637240) on Saturday March 08, 2014 @12:35PM (#46434967)
    CBS News had a better headline [cbsnews.com]

    Massachusetts lawmakers crack down on "upskirt" photos

    That's Fark quality.

  • "Before I vote on this here law," drawled the Boston polit...sorry hold on.

    "Before I vote on this heah law," Kennedied the Boston politician, "I'm goin-guh to need to see some of these so-called 'up her skirt' photo-garaffs to make shua they are a vile as suggested. Good. Ok thank you. I will be busy studying them at home. Hold my calls."

  • by Anonymous Coward on Saturday March 08, 2014 @01:38PM (#46435333)

    Why did such laws not originally exist? The question is essential, the answer very disturbing.

    Under the PRINCIPLE of English law, which is mostly the basis of Law in lands derived from England, like the USA, laws apply equally to citizens and 'agents' of the State, like police. The reason laws against covert photography were missing was because, until very recently, such laws would also apply to people working for the State, and governments did NOT want their own people limited by such laws.

    Things have changed. Since the 1980s, the sheeple have been subject to non-stop propaganda attacks that define a new "you and them" understanding, where the State is understood to be the MASTER of the sheeple, not its servant. When enough sheeple took it for granted that the State acted as if it were "above the Law of Man", those in power could exploit this new mindset to the max.

    Now, the vast majority of sheeple see no issue with a law that bans THEM from all kinds of acts that, if done by an employee of the State, will attract no penalty.

    So, your school can provide laptops to your children to take home, SPECIFICALLY for the covert purpose of video recording your children in their own bedrooms at all times, and when this program is revealed, the highest courts of the USA declare such acts completely legal. And not legal in the sense that someone had 'forgotten' to create a law describing such as a crime. NO- legal in the sense that the State, and those that the State employs, are above the Laws that control you, the sheeple.

    Look had broadly the new, UNCONSTITUTIONAL (because the new law involved no public consultation) law is defined. It is a classic 'catch all' that allows ANYONE engaged in public photography to be arrested on suspicion. YOU wanted a law punishing pervs who were obviously sticking a camera up a woman's skirt. What you got is a law that fires first, and asks questions later.

    Take a photo of a child (which is scarily defined as even a 17-year old) in a swimsuit in a public venue, and you've broken this law. You MIGHT win in court, but the act of taking such a photo is certainly grounds for arrest.

    Using a camera to take a photograph of a full dressed women without her consent is now also grounds for arrest. WHY? Because your INTENT may be infringing- you may have removed the IR filter (or be using a camera sensitive to IR), so that IR transparent clothing 'vanishes' on the recorded image, revealing the 'intimate parts' that make your act of photography a crime under this new law. Neither the woman nor the arresting officer can prove you are NOT doing this by looking at your camera. And unlike court, a police person is allowed to follow a "guilty until proven innocent" approach if they have any reasonable grounds to suspect guilt.

    Why would Massachusetts want such an over-reaching and catch-all version of this law? Do I REALLY have to ask? They stomp all over your rights, in the name of public decency, while codifying their ability to do the very thing this new law is supposed to prevent. Will Bill Gates NSA spy platform, the Xbox One, suddenly become illegal in children's bedrooms in this state? Hahahahahahaha. Most of you sheeple are so thick, you fall over yourselves to praise Gates for helping create a real-life '1984' world.

  • I know, most of you can't do that, but would that be a misdemeanor?

  • by dpbsmith (263124) on Saturday March 08, 2014 @02:34PM (#46435645) Homepage

    It all seems reasonable to me. The existing law had a bug. Nobody ever intended for upskirt pictures to be legal. The judge did the right thing: reported the bug. The developers of laws did the right thing: they fixed the bug. Now the legal situation is better than it was.

  • Whew! Live-viewing with a special analog, optical "periscope" is still permissible!
  • by mysidia (191772) on Saturday March 08, 2014 @11:17PM (#46437801)

    anyone who 'photographs, videotapes or electronically surveils' a person's sexual or intimate parts without consent should face a misdemeanor charge.

    Anyone who videotapes, OR.... ?

    Step 1. Run naked across the field of view of the camera "accidentally"
    Step 2. See the camera, call the police
    Step 3. Press charges against property owner for violation of upskirt law
    Step 4. Profit

    The crime becomes a felony - punishable by up to five years in prison and a $10,000 fine - if the accused secretly takes indecent photographs of anyone under the age of 18."

    Double-score if you're a 17-year-old obnoxious young lady; now the fixed camera operator will become a felon.

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