How Upskirt Surveillance Videos Can Be Legal

By: Carlton Purvis, Published on Apr 01, 2014

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.

***** * *** *** caught ****** ******* ****** of ***** ** * Boston ***** ***** *** state ******* ***** ********* the ****.

** **** ****, ** review*** ********* *** ********* *** this ** ** ** issue ** ***** *************. The **** *** ** a *** ***** *** closing * ******** **** allowed *** ********.

**********
******* ********* *** ******** in **** *** ***** a **** ***** ****** to **** ******** ** women’s ******* ** *** subway. ** *** *******, under ******** *** ***, **** *** ****** of ************* ** ************ nude ** ********* **** person. ** ***** * motion ** ******* *** case, *** ** *** denied. ** ********.

[***************]

*******, *** ******, ******** Menken,****** [**** ** ****** available] **** ** * clothed ******’* ****** ******* a **** **** ** public, ******* *********** ** unintentional, **** ***’* ****** privacy. *** **** *** law ******** ****** **** being ******** ** ******* places **** ******** ***** and *********, *** *** public ******.

*** **** ****** **** under *** ******* ******* the ********* *** ** be ********* ** ** illegal. *** **** *** client *** *** *** was **** ************* **** was ***** ** ***** of ***.

*** ***** ****** **** people **** ** *********** not ** ** ************ in **** *** ** that ********* *** **** a ****** *** ** expectation ** ******* ** their ******* ***** ** a ****** ****.

Appeals *******

******* ***** ******** ***** five ********** **** ***** have ** ** *** for *** ******* ****** to ** * *****:

  • *** ********* *** ********* recording
  • *** ******* *** ********* nude
  • *** ********* *** ****** to ****** ********
  • *** ********* ******** ** a ***** ***** *** person *** * ********** expectation ** *******
  • *** ********* *** ** without *** ***** ****** noticing

*** ******* ***** ********** upheld *********’* ****** ** dismiss ******* *** ****** interpretation ** *** *** “flawed.” *** ***** **** act *** *** ******* all ** *** ************. The ******* **** *** partially **** *** **** not ** * ***** where **** *** * reasonable *********** ** *******.

“** *** **** ** the ************'* ******** ** the ******** ** *** proposition **** * *****, and ** ********** * woman ****** ** * public *******, *** * reasonable *********** ** ******* in *** ****** * stranger ******** **** *********** up *** *****. *** proposition ** ********* **********, but [*** ***] ** its ******* **** **** not ******* **,” ****** said.

*****************

********* ** ***** **** they **** “***********” ******* on ******** ************* ******** to ******* ******** **********. Last **** ******* ********* Clark********** * ****** ** the ************ ********* **** ** any “***** ********, ********, pubic ****, ** ****** breast ***** * ***** immediately ***** *** *** of *** ******, ******* naked ** ******* ** undergarments.” *** **** ** this **** ***** ****** a *** **** *********** bans ***** ********* ** anyone ** ******. ** didn't ****.

** *** *** ***** media ********* *********** *** Robertson ******* * ****** bill *** ****** *******.

*** **** ***** *** case, *** *********** ****** the *** [**** ** longer *********].

"***** *** ****, ** would ** * *********** to **** ****** ****** and ****** ** '*** sexual ** ***** ******** parts ** * ****** under ** ****** *** person’s ********.' *** *** would ***** ** ***** when * '********** ******' would ******* ***** ***** of ***** **** ***** not ** ******** *******," Boston.com [**** ** ****** available] *******.

*** ******* ** ** to ** ** ** months ** **** *** a $**,*** ****.

Other ******

**** ****** ******* ************ *************** ************ *** **********, but **** ***** **** have *** ******** ************* did, ** **** *********** is ****** ** ***** other ****** ** ****** their ****.

*** ******* ** **********, it's ******* ** ******** film "*** *** ******* ** viewing *** **** **, or *** ************* ****," *** **** ** places ***** * ****** has * ********** *********** of *******. *** **** wording *** ** ***** in **** ****** ****** or *******-*** ******* ****: The ********* *** ** be ****** *** *** to ** ** * place ***** * ****** has * ********** *********** of *******.

**********, *******, **** **** a "******* ****" *** that ************ ************ ** the ****** ** ******. Other ****** *** ******* to ***** ******* **** (******* ***** ********* ********).

*******, ***** ***** ** potential ******** ** ****** go *** ***** ** prohibiting ********* ** ******* areas "******* ***** ** covered ** *************."

 

***** *** ****, ** would ** * *********** to **** ****** ****** and ****** ** “*** sexual ** ***** ******** parts ** * ****** under ** ****** *** person’s ********.” *** *** would ***** ** ***** when * “********** ******” would ******* ***** ***** of ***** **** ***** not ** ******** *******. - *** **** **: http://www.boston.com/politicalintelligence/2014/03/06/after-high-court-ruling-upskirting-legislative-leaders-pledge-quick-action/P1bp7k0AnT0UC6X8JsNjnJ/story.html#sthash.rlXuw2nH.dpuf
***** *** ****, ** would ** * *********** to **** ****** ****** and ****** ** “*** sexual ** ***** ******** parts ** * ****** under ** ****** *** person’s ********.” *** *** would ***** ** ***** when * “********** ******” would ******* ***** ***** of ***** **** ***** not ** ******** *******. - *** **** **: http://www.boston.com/politicalintelligence/2014/03/06/after-high-court-ruling-upskirting-legislative-leaders-pledge-quick-action/P1bp7k0AnT0UC6X8JsNjnJ/story.html#sthash.rlXuw2nH.dpuf

Comments (8)

Besides the outrage we all normally feel at seeing the puported peeping perpetrator skirt the law, does anyone else feel a contempt for the standard practice of retaining counsel which demographically resembles the victim in as many ways possible? It seems almost automatic these days, harass a woman, hire a female lawyer, assault an african american, hire one as a lawyer. Same goes if the victim is a latino or a senior citizen.

All based on "innocence by association" as well as the crude logical fallacy of "Here is someone just like the victim who likes the accused, maybe the victim is the problem..." I feel (on an emotional level only) like it shouldn't even be allowed as it is a brutal mock of the crime itself.

Of course we can't say absolutely whether that was the case or not here, but on the other hand I can't help wonder if she is wearing pants...

Rukmini, that may be a nobley intended thought, but still flawed for a number of reasons. A defendant should be allowed to hire whomever they want as counsel. Counsel should be allowed to work for whomever they want. If you're a defendant, you'd want any advantage within reason. Prosecution will try to paint a bad picture of you. You will want to paint the best picture of yourself as possible. Unlike many parts of the world, here you are innocent until proven guilty, and that's the way it should be.

As for the main subject of the article, I think they still could have gotten him on disorderly conduct, though that carries a pretty light penalty. Unfortunately these days you have to have laws spelled out in superfluous detail because common sense is given so little credit or weight when a law is challenged on intent.

Rest assured I agree that "a defendant should be allowed to hire whomever they want as counsel", that is what I was trying say with my parenthetical stipulation "(on an emotional level only)". Since the profession is notoriously white (90%) and male (70%), this practice results in an added boost for the minorities and is welcome in that respect.

I wonder when we might see a court case about a retail store using cameras in the floor to look clothing on the grounds shoplifters hiding merchandise underneath.

I wonder what this means for the paparazzi on celebrities.

Probably nothing. It's not considered in the same category and paparazzi are typically in places where people don't have an expectation of privacy anyway. If anyone knows laws on recording people it's the paparazzi and they'll push right up to the line without doing something illegal. Because of that, some states, California for example, already have specific laws aimed at paparazzi.

If it's coming more to light and the states close loopholes, then the paparazzi might not get too far.

However, with bathroom cams already being justified in some cases, how soon until we see the new:

FLOOR CAM!

"See what shoplifters are UP too"

Carlton, what about the laws regarding thru-skirt technologies, do they exist? We are on the cusp of the launch of the Flir One which will no doubt lead to new and innovative privacy invasions...

Maybe an oppurtunity for garments with embedded infra-red countermeasures ??

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