How Upskirt Surveillance Videos Can Be Legal

After a man was caught taking upskirt videos of women on a Boston metro route the state supreme court dismissed the case.

In this note, we review the ruling and the potential for this to be an issue in other jurisdictions. The case led to a new state law closing a loophole that allowed the practice.

Background
Michael Robertson was arrested in 2010 for using a cell phone camera to take pictures up women’s dresses on the subway. He was charged, under a peeping tom law, with two counts of photographing an unsuspecting nude or partially nude person. He filed a motion to dismiss the case, but it was denied. He appealed.

In court, his lawyer, Michelle Menken, argued [link no longer available] that if a clothed person’s outfit reveals a body part in public, whether intentional or unintentional, they can’t expect privacy. She said the law protects people from being recorded in private places like changing rooms and bathrooms, but not public places.

She also argued that under the exiting statute the recording had to be secretive to be illegal. She says her client was not and was just photographing what was right in front of him.

The state argued that people have an expectation not to be photographed in that way in that situation and that a person has an expectation of privacy of their private parts in a public area.

Appeals Outcome

Supreme court justices noted five provisions that would have to be met for the upskirt videos to be a crime:

• The defendant was willingly recording
• The subject was partially nude
• The defendant was trying to record secretly
• The defendant recorded in a place where the person has a reasonable expectation of privacy
• The defendant did so without the other person noticing

The appeals court ultimately upheld Robertson’s motion to dismiss calling the states interpretation of the law “flawed.” The court said act did not satisfy all of the requirements. The victims were not partially nude and were not in a place where they had a reasonable expectation of privacy.

“At the core of the Commonwealth's argument to the contrary is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but [the law] in its current form does not address it,” judges said.

Legislation Passed

Lawmakers in March said they were “immediately” working on revising Massachusetts statutes to address changing technology. Last year Senator Katherine Clark introduced a change to the law replacing partially nude to any “human genitals, buttocks, pubic area, or female breast below a point immediately above the tip of the areola, whether naked or covered by undergarments.” The bill in this form would create a law that essentially bans video recording of anyone in public. It didn't move.

It was not until media attention spotlighted the Robertson verdict a usable bill was pushed through.

Two days after the case, the legislature passed the law [link no longer available].

"Under the bill, it would be a misdemeanor to take secret photos and videos of 'the sexual or other intimate parts of a person under or around the person’s clothing.' The law would apply to times when a 'reasonable person' would believe those parts of their body would not be publicly visible," Boston.com [link no longer available] reports.

The penalty is up to up to 30 months in jail and a $10,000 fine.

Other States

Some states like New York and North Carolina already specifically ban upskirting, but many state laws have the loophole Massachusetts did, so this legislation is likely to cause other states to review their laws.

For example in California, it's illegal to secretly film "for the purpose of viewing the body of, or the undergarments worn," but only in places where a person has a reasonable expectation of privacy. The same wording can be found in most hidden camera or peeping-tom related laws: The recording has to be secret and has to be in a place where a person has a reasonable expectation of privacy.

California, however, does have a "revenge porn" law that criminalizes distribution of the videos or photos. Other states are looking to enact similar laws (raising First Amendment concerns).

However, there could be potential problems if states go the route of prohibiting recording of private areas "whether naked or covered by undergarments."