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Massachusetts Court Says 'Upskirt' Photos Are Legal

timothy posted about 6 months ago | from the just-because-you-can dept.

Privacy 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."

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A new law in not what is needed (-1, Troll)

ISoldat53 (977164) | about 6 months ago | (#46423539)

It's time to remove these judges.

Re:A new law in not what is needed (5, Insightful)

Myu (823582) | about 6 months ago | (#46423623)

Well if it really isn't actually illegal except at the subjective assessment of a particular judge, then isn't the ruling correct, and the change of law an appropriate next step? Better to utterly stamp this thing out than leave any room in the law for weaselling.

Re:A new law in not what is needed (0)

Ardyvee (2447206) | about 6 months ago | (#46423655)

Indeed. This is one of those things that should be very clear without any room for error. Either the person tried taking the photo (success irrelevant) and is guilty, or didn't try and is innocent. There shouldn't be a middle ground.

Re:A new law in not what is needed (5, Insightful)

meglon (1001833) | about 6 months ago | (#46423851)

There is no middle ground:

....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:A new law in not what is needed (1, Insightful)

farble1670 (803356) | about 6 months ago | (#46423849)

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 (2, Insightful)

228e2 (934443) | about 6 months ago | (#46423975)

. . so people cant wear skirts anymore? Sharia Law is over there . . . .

Re:A new law in not what is needed (2, Insightful)

Anonymous Coward | about 6 months ago | (#46424131)

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 (4, Insightful)

farble1670 (803356) | about 6 months ago | (#46424137)

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.

Re:A new law in not what is needed (1)

JoeMerchant (803320) | about 6 months ago | (#46423977)

As I read the ruling, it would be illegal if there were nudity involved - so does this mean it's legal until somebody isn't wearing panties?

Re:A new law in not what is needed (5, Insightful)

jxander (2605655) | about 6 months ago | (#46423927)

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 (5, Informative)

mrsquid0 (1335303) | about 6 months ago | (#46423637)

The judges simple pointed out that under current law taking these pictures is legal. That is their job. What is needed is for the appropriate laws to be rewritten.

Re:A new law in not what is needed (3, Insightful)

Ralph Wiggam (22354) | about 6 months ago | (#46423799)

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:A new law in not what is needed (4, Interesting)

Anonymous Coward | about 6 months ago | (#46424023)

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.

That's because it isn't actually their job to do that. They arrogated that power to themselves.

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.

The consequence of allowing these judges to determine constitutionality has been (just to mention a few) inversion of the commerce clause, violations of almost the entire bill of rights, usurpation of states rights by the feds, and more.

The constitution is written in plain English. If it proves insufficient to the cause, it can be amended. The very first amendment it ought to have is the holding of legislators accountable when they make laws that the constitution rules out. In the vast majority of cases, that's bloody obvious. For instance, "shall make no law" is crystal clear. So what does congress do? They make laws in that very area anyway. And the justices? They uphold these laws. It's no wonder the legal system is such a wreck. They aren't traitors; they're just criminals.

Re:A new law in not what is needed (0)

Anonymous Coward | about 6 months ago | (#46424107)

That is done by the constitution itself. ... If it proves insufficient to the cause, it can be amended.

So that basically comes back down to the legislative branch? If they passed the law, they are not going to argue that it is unconstitutional. If they don't like the lay, they can just create a new one that undoes a previous one, without any need to appeal to it being constitutional or not. There is a lot of middle ground between what is needed to get a law passed, and what is need for say the states to amend the constitution to undo something.

Re:A new law in not what is needed (2, Insightful)

Ralph Wiggam (22354) | about 6 months ago | (#46424163)

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 (0)

Anonymous Coward | about 6 months ago | (#46424029)

Quote from a Supreme Court ruling: "A black man posesses no rights that a white man must respect."

That the Supreme Court defines what is Constitutional is not a defensible position.

Re:A new law in not what is needed (1)

Ralph Wiggam (22354) | about 6 months ago | (#46424077)

Take it up with Thomas Jefferson. He wrote the rules, not me.

Re:A new law in not what is needed (0)

Anonymous Coward | about 6 months ago | (#46424037)

There are "courts" and then there's the Supreme Court. Once the SCotUS makes a ruling, it's settled for every other court, unless a jury specifically nullifies the law. ("Salus populi" and all that...) That makes such decisions much more final, and when that essentially-final ruling is viewed as unjust or against the law from any angle, either in letter or in spirit, then it turns into an emotional cry for "revolution". All other options for a "fair" ruling have been overruled, and jury nullification is such a long-shot that it will never happen. Thus the posts you describe.

Never corner a wounded animal. It has nothing to lose by fighting you to the death.

Re:A new law in not what is needed (2, Insightful)

StripedCow (776465) | about 6 months ago | (#46424057)

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 (1)

Anonymous Coward | about 6 months ago | (#46423705)

i think it should be illegal and the guy was a pervert,
BUT
at least here in NYC some women wear extremely short skirts in the summer time even when they have to go up the stairs in a public place like the subway so its almost like they are showing off. not saying its their fault and i love the see through pants they were to show off their thongs and ass. just sayin

Re:A new law in not what is needed (3, Interesting)

vettemph (540399) | about 6 months ago | (#46423891)

Yes, so i'll get a 6" round pipe, 1 foot long, and attach it to my zipper, sticking straight out (maybe a slightly upward angle). I'll let my junk rest in the pipe. As long as you don't look down the pipe, you won't see my junk.
  This is the equivilent of a skirt, just at a little different angle. (most of the time, but not always).

  Also, if I hold my camera 2.5 feet off the floor, looking up, I can see up a gals skirt. That is also the same viewing angle that a two year old boy has. A woman can't go around corrupting minors and at the same time get all uppity about her fashion statement and privacy. A woman who wants the privacy needs to cover it up, and not just from a few angles. You can't have iot both ways.

  Of course, my preference is, ...uncovered.

Re:A new law in not what is needed (1)

ackthpt (218170) | about 6 months ago | (#46423757)

Maybe they have cameras in their shoes...

This is a sick practice, no matter who is doing it.

Re:A new law in not what is needed (4, Funny)

PolygamousRanchKid (1290638) | about 6 months ago | (#46423883)

Maybe they have cameras in their shoes...

. . . please don't give Google any more ideas about where to mount their glasses . . .

Re:A new law in not what is needed (5, Insightful)

ShanghaiBill (739463) | about 6 months ago | (#46423771)

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 (4, Funny)

scuzzlebutt (517123) | about 6 months ago | (#46423779)

No, It's time to put GoPro's on my shoes and head to Boston!

Re:A new law in not what is needed (-1, Troll)

s.petry (762400) | about 6 months ago | (#46423853)

Correct answer. This answers the question below of this [slashdot.org] . This ruling is not just idiocy, but sets a dangerous precedent. To see the idiocy these judges used to rule, this gem says it all.

"In sum, we interpret the phrase, 'a person who is ... partially nude' in the same way that the defendant does, namely, to mean a person who is partially clothed but who has one or more of the private parts of body exposed in plain view at the time that the putative defendant secretly photographs her," the high court ruled.

In other words unless you have cloth covering every exposed inch of your body, you are 'partially nude' according to these fabulous judges.

This level of idiocy is special. Not only should these people be removed from the bench but they should be banned from owning cameras themselves. You know, those grand children are only partially nude so it's okay to take pictures of them. (I hate to call out a potential 'for the children' argument, but the ruling reminds me of the stereotypical perverted uncle. Yeah, my family has one too.).

Re:A new law in not what is needed (2)

Sancho (17056) | about 6 months ago | (#46424019)

No, you've got it wrong. The women were considered fully clothed because no private parts were exposed. Partial nudity requires "private" parts to be uncovered, not any part of your body. That's precisely why this guy got off--despite his creepy photograph, he wasn't photographing partially nude people--he was photographing fully clothed ones. The law (apparently) doesn't criminalize photographing fully clothed people.

Re:A new law in not what is needed (3, Insightful)

Stormy Dragon (800799) | about 6 months ago | (#46424169)

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 (0)

Anonymous Coward | about 6 months ago | (#46424173)

you're extremely wrong. Read again, it says 'one or more of the private parts of the body', not 'one or more parts of the body'. (If you're not sure what "private parts" refers to, look it up, hint doesn't include arms, neck, or ankles). So, what the judges are saying is that under this particular law, the woman had to actually be partially nude to be considered partially nude. On the other hand, the prosecution argument could have been dangerous in exactly this way. If what in most circumstances is considered "fully clothed" can be called partially nude, it opens the door to applying this law Saudi style. The judges are right, law needs to be fixed. You just read things too quickly to know that you agree with the judges not the prosecutors.

Now that's news for nerds (5, Funny)

KingTank (631646) | about 6 months ago | (#46423541)

BRB got some photography to do.

Re:Now that's news for nerds (5, Interesting)

sixshot (878181) | about 6 months ago | (#46423887)

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.

Re:Now that's news for nerds (1)

Anonymous Coward | about 6 months ago | (#46424179)

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.

Hence the hurry....

USA! USA! (5, Funny)

michael021689 (791941) | about 6 months ago | (#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.

Re:USA! USA! (0)

Anonymous Coward | about 6 months ago | (#46423603)

We do get pretty mad about those pointless predatory violations of privacy.

You're an idiot. (1)

Anonymous Coward | about 6 months ago | (#46423775)

The fact that "Americans" get uptight about up-skirts is a healthy expression of the desire for privacy. The correct thing is not to criticise them for it, but to show them how the government and the businesses it works for are guilty of similarly intrusive behaviours.

If you don't care about someone taking random photographs of your undercarriage, that's your personal feeling on the matter. If you tell other people they shouldn't care either, you're just as bad as the pro-NSA anti-privacy advocates.

Re:USA! USA! (0)

Anonymous Coward | about 6 months ago | (#46424135)

this will dwarf the reaction to all that NSA business

Who's edward snowden again?

Wait, what is this? (-1, Troll)

Anonymous Coward | about 6 months ago | (#46423577)

A Massachusetts court applying laws as written, rather than making up some bogus progressive interpretation to satisfy their liberal bias? That IS news!

Re:Wait, what is this? (-1)

Anonymous Coward | about 6 months ago | (#46423633)

It's the law in Saudi Arabia that women can be beaten to death by their husbands legally, that doesn't mean we should uphold that law. That 'iberal agenda' is to keep women from having their privacy violated without their consent.

Re:Wait, what is this? (0)

Anonymous Coward | about 6 months ago | (#46423749)

I'm not expert on Saudi Arabian law, but I gotta strong feeling that upskirt photos are not a problem in that country. You know, cause burkas.

Re:Wait, what is this? (0)

Anonymous Coward | about 6 months ago | (#46424063)

No, they have effective gender-slavery instead.

Re:Wait, what is this? (5, Insightful)

TFAFalcon (1839122) | about 6 months ago | (#46423863)

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? (0)

Anonymous Coward | about 6 months ago | (#46423737)

the liberal bias is the guy didn't really mean to do it and he is really sorry so we should let him off

like if you kill someone with your car in NYC going 20 over the limit, running stop signs, etc. the cops write you a ticket for failure to yield or whatever and let you go. the EMS takes the dead guy to the morgue

Re:Wait, what is this? (0)

Anonymous Coward | about 6 months ago | (#46423773)

This is a liberal interpretation of the law - verging on anarchist! Following the letter of the law as opposed to the spirit of the law tends to be a conservative tactic.

But seriously, how can this even be political issue? This is serious, blatant encroachment on a woman's civil liberties! It's a ruling that protects nobody and puts women at risk.

Re:Wait, what is this? (1)

AndrewBuck (1120597) | about 6 months ago | (#46423999)

I agree with you that it is not really a political issue, nor should it be one. However the conservative wing of our country (and I mean to say conservative not republican since they are not one and the same) has gotten so far right that anything which might actually help anyone they just oppose out of gut instinct. I don't think they are anti-woman per se, it is just that they are anti "anything one of those evil liberals might be for". So if making upskirt pics illegal would be supported by a liberal, they will oppose it even if they would agree with it anyway. Remember this is supposedly the group of people concerned with family values and dressing modestly, but as soon as the liberals are on board they have to react.

In summary, liberals are against this not because they are liberals, but just because they are decent people who know what consent means. The conservatives then take a contrary stance based on a percieved political divide over the issue, thus making it a political issue. Fascinating stuff.

-AndrewBuck

Re:Wait, what is this? (1, Insightful)

meglon (1001833) | about 6 months ago | (#46423915)

You're right, but then who's going to protect all those prudish conservative women from the pathetically perverse conservative men? Apparently you think "liberal" and "progressive" are synonyms for "protecting women from men acting like pieces of shit," and ...wait... you're right, they are... cause conservatives don't seem to give a damn about women other than having them around as second class, barely citizen, breeding chattel with no rights of their own.

I was going to mod you, but there isn't one for "dumb fucking cunt."

In Other News... (5, Funny)

aevan (903814) | about 6 months ago | (#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~

Re:In Other News... (0)

Anonymous Coward | about 6 months ago | (#46423653)

"Every person, male or female, has a right to privacy beneath his or her own clothing," Suffolk County District Attorney Daniel Conley said in a statement Wednesday

Take note, TSA.

Re:In Other News... (0)

JoeMerchant (803320) | about 6 months ago | (#46424009)

Exceptions made for matters of national security, airline safety, etc.

photon collector (0, Funny)

Anonymous Coward | about 6 months ago | (#46423583)

Just collecting publicly available photons...

Does not make sense (4, Insightful)

tempestdata (457317) | about 6 months ago | (#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:Does not make sense (2, Insightful)

Anonymous Coward | about 6 months ago | (#46423697)

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:Does not make sense (2)

tempestdata (457317) | about 6 months ago | (#46423801)

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

Re:Does not make sense (1)

Anonymous Coward | about 6 months ago | (#46423995)

Yeah, but in Saudi Arabia you're likely to get executed if caught.

Re:Does not make sense (2, Insightful)

Anonymous Coward | about 6 months ago | (#46423843)

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.

Re:Does not make sense (0)

Anonymous Coward | about 6 months ago | (#46423925)

That's what I tried to explain to the cop, but he said that I actually had to wear clothes to expect people to not look at my private parts.

Re:Does not make sense (0)

Anonymous Coward | about 6 months ago | (#46424117)

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?

Uh, nothing there is to stop you. In fact, you can go to any celebrity gossip site and find tons of photos where a woman celebrity underwear (or lack of) is exposed by the intense flash and captured on film. The fact is there is no privacy if you are out in public.

Re:Does not make sense (0, Insightful)

Anonymous Coward | about 6 months ago | (#46423859)

Also, what if the woman is not wearing any underwear?

Then she should be charged with public indecency. What's good for the goose is good for the gander.

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.

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: Does not make sense (0)

Anonymous Coward | about 6 months ago | (#46423873)

I would greatly appreciate any photos you have of this woman even her phone number. Thanks!

Re:Does not make sense (0)

JoeMerchant (803320) | about 6 months ago | (#46424091)

She is not being forced to remove anything, she is completely unmolested.

Are there any metal gratings she walks over that reveal similar views?

The question becomes, is there an expectation of visual privacy below a certain height above ground? The social answer is "yes, there is that expectation, only extreme deviants don't respect privacy in that way."

Fortunately, or unfortunately - depending on your perspective, being an extreme social deviant is not, in itself, a crime. You have to cause actual harm to another. I suspect the new law will be saying something about emotional distress due to unusual exposure...

The nudity laws in Texas include a "intent to shock or disturb" clause, so nude beaches get a pass because the beachgoers aren't taking off their clothing with "illegal intent."

Given that interpretation of what the law says... (3, Interesting)

Ardyvee (2447206) | about 6 months ago | (#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?

Re:Given that interpretation of what the law says. (2)

CanHasDIY (1672858) | about 6 months ago | (#46423693)

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.

Re:Given that interpretation of what the law says. (0)

Anonymous Coward | about 6 months ago | (#46423953)

I would guess simple harassment is a slap on the wrist and a small fine.
    Through in the sex crime portion and suddenly it is a felon (or at least a gross misdemeanor) and possible jail time and potential permanent registration on a sex offenders list.

Re:Given that interpretation of what the law says. (1)

JoeMerchant (803320) | about 6 months ago | (#46424113)

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.

Re:Given that interpretation of what the law says. (2)

mrsquid0 (1335303) | about 6 months ago | (#46423713)

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 real legal counsel.

Re:Given that interpretation of what the law says. (1)

Anonymous Coward | about 6 months ago | (#46423939)

Right, but this whole issue is about what's public or private. If I take a photo of you walking on the other side of the street, yeah, you're in public and that's fine. If I thrust a camera down your pants and take a snap though, I think any sane person would agree that what I photographed was entirely private. The positioning of the camera, and intent of the photo, matters... or at least it should. But the word of the law, here, is not matching the intent; it's treating obviously private circumstances as public.

So, yeah, unfortunately it sounds like what the guy is doing *is* legal, the judge was right in their judgement, and that law needs to be changed right freaking now.

Re:Given that interpretation of what the law says. (0)

Anonymous Coward | about 6 months ago | (#46423965)

Not a lawyer. Do not play one on tv.

But it sounds like you dated one in college.

Re:Given that interpretation of what the law says. (4, Informative)

goodmanj (234846) | about 6 months ago | (#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.

Re:Given that interpretation of what the law says. (1)

JoeMerchant (803320) | about 6 months ago | (#46424127)

upskirting really does fall between the cracks of Massachusetts law.

That deserves a comic-sketch.

Re:Given that interpretation of what the law says. (3, Funny)

AmiMoJo (196126) | about 6 months ago | (#46423945)

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

Incoming legislation (2)

daveywest (937112) | about 6 months ago | (#46423621)

No the way I would go about getting a new law named after myself, but to each his own.

Boys' Clubs (0)

Anonymous Coward | about 6 months ago | (#46423641)

So what's the difference between this and photographing a woman in her underwear though her window, or the ethical difference between this and molesting the woman on a bus?

A revision of the law isn't what's called for here, it's an end to the Boy's Club system and judges who will seriously argue against rights for women.

Re:Boys' Clubs (0)

Anonymous Coward | about 6 months ago | (#46423781)

So what's the difference between this and photographing a woman in her underwear though her window,

The woman on the bus is fully clothed, the women in her underwear isn't. As far as the law in question is concerned the difference is important.

or the ethical difference between this and molesting the woman on a bus?

What does that have to do with anything? Seriously, what does ethicality have to do with legality?

A revision of the law isn't what's called for here, it's an end to the Boy's Club system and judges who will seriously argue against rights for women.

The Judge doesn't argue for or against anything. He interperates the law and determines how it applies to the case at hand. If the shitty law doesn't cover a case that you think it should then it's because the legislature fucked up. Now there a "Boy's Club system" here but its the legislautre you should be looking at for it.

Re:Boys' Clubs (1)

mrsquid0 (1335303) | about 6 months ago | (#46423803)

The solution is to bring the relevant laws into the 21st century, then judges will have the tools that they need to deal with people who do this sort of thing. Given the attention that this case is getting I suspect that the laws will be modernized very soon.

Re: Boys' Clubs (1)

Damarkus13 (1000963) | about 6 months ago | (#46423895)

Ethically, nothing.

Legally, photographing a woman in a state of partial or complete undress is explicitly illegal. Photographing a fully clothed woman from an angle that exposes her undergarments (or lack there of) is not.

Expect to see this law amended very shortly, as most residents that state probably already thought upskirtting was illegal.

privacy, schmivacy (1)

Anonymous Coward | about 6 months ago | (#46423647)

Remember, if you are out in public you have no expectation of privacy, and therefore can be photographed -- at any angle.

WTF, MA!? (-1)

Anonymous Coward | about 6 months ago | (#46423687)

Wow, this is thoroughly disgusting. How much 'evidence' did the judge review before deciding that he, personally, actually liked upskirt photos. With this ruling the judge has actually implied that a woman in a skirt automatically 'consents' to invasive creeping. That's the equivalent of claiming a rape victim 'asked for it' by wearing a short skirt. What a filthy lowlife scumbag!

Next on the docket: hidden cameras in public restrooms - it's a public space, so expect to be photographed & filmed! Slippery slope, your (dis)honor.

New law passed one the following day (today) (5, Informative)

Anonymous Coward | about 6 months ago | (#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

Re:New law passed one the following day (today) (1)

Anonymous Coward | about 6 months ago | (#46424087)

I didn't know there was a 56th day in March.

The law was revised today (0)

Anonymous Coward | about 6 months ago | (#46423787)

Dateline: 3/6/2014 5:24PM

The Massachusetts Legislature just passed revisions to the exist laws which has already been passed to the Governor for signature.
http://www.wcvb.com/news/upskirting-bill-passes-moves-on-to-governors-desk/24845520

Summary Terrible (4, Informative)

Stormy Dragon (800799) | about 6 months ago | (#46423797)

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).

and further, the court agreed with legislating it (1)

SuperBanana (662181) | about 6 months ago | (#46424059)

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 (5, Interesting)

BarefootClown (267581) | about 6 months ago | (#46423821)

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.

Why not... (0)

OrangeTide (124937) | about 6 months ago | (#46423831)

Write a law to make it illegal to photograph anyone without their written consent, or in the case of a government agency a warrant.

it solves the upskirt issue, the paparazzi problem, and ends those annoying red light cameras.

Re:Why not... (0)

Anonymous Coward | about 6 months ago | (#46424033)

So basically prohibit photography in public then? Because I'm willing to bet there is a good chance that any photo taken in an urban area has at least one person in it that you didn't get permission to photograph.

Your Kids Soccer Game (2)

windwalker13th (954412) | about 6 months ago | (#46424061)

<quote><p>Write a law to make it illegal to photograph anyone without their written consent, or in the case of a government agency a warrant.</p><p>it solves the upskirt issue, the paparazzi problem, and ends those annoying red light cameras.</p></quote>

So you want to take a picture of your son/daughter playing soccer . . . .. you will now need to get every other parent guardians signature just incase you accidentally take a picture of their child.

However one might consider this that the pictures were taken with the intent to disseminate. Unless they are disseminated without any profit being made then they are being used for commercial purpose. Hence if they are on a upskirt website they are being used for commercial purpose because the owners of those sites make revenue from adds by providing content. However I'm not sure how well his would actually stand up.

Re:Why not... (0)

Anonymous Coward | about 6 months ago | (#46424069)

Way intrusive. I would oppose such a law, and would expect it to be struck down on First Amendment grounds.
You're showing your face in public? That's okay.
Taking pictures of stuff you're intentionally covering? Let's hope the legislature makes that an illegal violation of privacy.

Well, the charges was "Peeping Tom" (1)

mpercy (1085347) | about 6 months ago | (#46423845)

And the language defining that particular offense essentially excluded people in public places. Someone nude or partially nude in a public place, well, that's their choice and they will probably be looked at and it should not constitute a peeping tom violation on my part if I stare at them. And fully clothed people are even less protected in public.

The law will need to be carefully crafted so that it prevents upskirts without preventing casual photos in public places, etc. But that's the problem with a law. If you try to make a law that allows innocuous behavior while punishing "deviant" behavior, you will be unable to define all the "deviant" behavior without infringing on perfectly innocent behaviors.

Re:Well, the charges WERE "Peeping Tom" (1)

mpercy (1085347) | about 6 months ago | (#46423847)

Arg. Not "charges was".

Illegal to (1)

wisnoskij (1206448) | about 6 months ago | (#46423931)

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?

Re:Illegal to (1)

idontgno (624372) | about 6 months ago | (#46424123)

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."

Re:Illegal to (1)

JoeMerchant (803320) | about 6 months ago | (#46424149)

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

Wow (2)

ArcadeMan (2766669) | about 6 months ago | (#46423963)

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

Smooth move, judge (1)

kheldan (1460303) | about 6 months ago | (#46423967)

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?

Re:Smooth move, judge (1)

idontgno (624372) | about 6 months ago | (#46424167)

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.

really??? (-1)

Anonymous Coward | about 6 months ago | (#46423983)

Seriously, is this nerdy news worthy???

Nudity has nothing to do with it (1)

nurb432 (527695) | about 6 months ago | (#46424055)

Photographing things publicly visible is fine, but what is inside of a dress is not publicly visible.

Very Nice (1)

motorhead (82353) | about 6 months ago | (#46424089)

You stay classy, Massachusetts.

NO!- court says they are not "illegal" (3, Insightful)

Anonymous Coward | about 6 months ago | (#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.

It shouldn't be illegal even if they were nude (1, Interesting)

shaitand (626655) | about 6 months ago | (#46424177)

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 you in public, wearing whatever you've chosen to wear and doing whatever you've chosen to do in public.

If you don't want someone to see down your blouse, don't wear a blouse people can see down. If you don't want someone to see up your skirt, wear a long skirt or don't wear a skirt. Granted people seeing this in person is something you can change tomorrow by not wearing these things and the photos you can't change your mind on. But we shouldn't be passing laws for no other purpose than to allow people to have fewer consequences when they make immodest wardrobe choices.

A law that blanket prevented photographing and recording people in public without explicit consent. That would be something I could get behind. Copyright being jointly shared on all images and video between the person making the photo/video and the people in them. That would be something I could get behind. Another law trying to define when you are and aren't entitled to privacy, spelling out certain circumstances and conditions. No thanks. The laws protecting individuals and preserving their personal rights should be broad, strongly worded, and strongly protected in our courts. It's the exceptions that should be narrow and specific.
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