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Massachusetts Court Says 'Upskirt' Photos Are Legal

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."

86 of 519 comments (clear)

  1. Now that's news for nerds by KingTank · · Score: 5, Funny

    BRB got some photography to do.

    1. Re:Now that's news for nerds by sixshot · · Score: 5, Interesting

      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.

    2. Re:Now that's news for nerds by Jane+Q.+Public · · Score: 4, Insightful

      "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.

    3. Re:Now that's news for nerds by youngatheart · · Score: 2

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

    4. Re:Now that's news for nerds by TheGratefulNet · · Score: 4, Funny

      if you are not private or protected, you are public.

      (sorry, been doing c++ too long, I think).

      --

      --
      "It is now safe to switch off your computer."
    5. Re:Now that's news for nerds by DutchUncle · · Score: 4, Insightful

      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".

    6. Re:Now that's news for nerds by CurryCamel · · Score: 2

      The flip side of this "personal responsibility" is allowing wackos dictate how I dress, which is the gentle start of a slippery slope. (Who else can dictate how I dress. What else can these wackos dictate I do.)

      But civilization in general is a balancing act on several of these slippery slopes.

  2. USA! USA! by michael021689 · · Score: 5, Funny

    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.

  3. In Other News... by aevan · · Score: 5, Funny

    "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~

  4. Does not make sense by tempestdata · · Score: 4, Insightful

    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.

    --
    - Tempestdata
    1. Re:Does not make sense by Anonymous Coward · · Score: 2, Insightful

      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.

    2. Re:Does not make sense by tempestdata · · Score: 2

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

      --
      - Tempestdata
    3. Re:Does not make sense by Anonymous Coward · · Score: 2, Insightful

      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.

    4. Re:Does not make sense by Jane+Q.+Public · · Score: 3, Insightful

      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.

    5. Re:Does not make sense by Jane+Q.+Public · · Score: 3, Interesting

      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."

      States around here have similar laws. In one state nearby it is completely legal for women to go topless anywhere men can go topless. Judge in a widely followed indecency case: "State law forbids the exposure of genitals. A woman's breasts are not genitals and so exposing them is not prohibited by law. Further, if it were, I would have no choice but to strike down the law as being unconstitutionally discriminatory."

      In another nearby state, nudity is allowed unless, as in Texas, it is intended to "shock or disturb". Thus, technically it is perfectly legal to go downtown naked, as long as you don't try to enter stores that require shirts and shoes. And if you did, that would be a violation of trespassing laws, not "indecency" laws.

    6. Re:Does not make sense by Jeremi · · Score: 4, Insightful

      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.

      --


      I don't care if it's 90,000 hectares. That lake was not my doing.
    7. Re:Does not make sense by vux984 · · Score: 2, Insightful

      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 something you clearly, no big deal, judge tells you to delete the picture. If you aren't a giant douchebag you probably offered to delete it as soon as you'd been made aware that you'd inadvertently caught that image, and it never went to court at all.

      On the flipside, if you fight it, and it comes out that you run a website of all the nip slips you've taken and there's other evidence that you deliberately go around trying to find circumstances to take advantage of to get such shots, and this is the 5th woman to have sued you for taking such pictures then you get upped the creep-meter and your in good company with the blatant upskirt guy.

      This is part of what judges are FOR.

      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.

      Rational people don't draw a line. Rational people allow that the edges of what we want and don't want as a society are blurry and leave it to judges to resolve any disputes case by case.

    8. Re:Does not make sense by Macgrrl · · Score: 3, Funny

      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.

      --
      Sara
      Designer, Gamer, Macgrrl in an XP World
    9. Re:Does not make sense by Jane+Q.+Public · · Score: 2

      "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 this specific case, vagueness is rampant. According to Mass. Supreme Court: "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..."

      Now, that's what I call vague. 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.

      I repeat: yes, rational people DO draw lines. All the time. That's why we're "a country of laws, not of men". Drawing lines is exactly what laws are all about. If you're not willing to draw a line, don't try to make it a damned law. Because then you're being a hypocrite.

    10. Re:Does not make sense by vux984 · · Score: 2

      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 all the openings for your limbs, there will be angles and circumstances where we'll be able to see what's inside.

      That possibility doesn't constitute permission to manufacture those circumstances and then exploit them.

      "But... but... it says 'covering these parts'" because if it is covering those parts adequately then they can't be photographed anyway.

      And then on top of that there is 'infrared' cams and other clothing penetrating photography? So now unless all your clothes are made of thick wool with airtight seals then any creep can put closeups of your genitals online? Hardly. Its pretty clear to any reasonable person that the infrared or upskirt photographer is effectively stripping them of (some of) their clothing for the purposes of the photo, rendering them 'partially nude' even if they don't actually take anything off.

      Frankly I'm actually surprised the the judges didn't see it this way. There was quite an uproar about the TSA 'nudie scanners' after all; but apparently those security (theatre!) photos weren't (partial?) nudes after all, so what was everyone whining about?

      rational people DO draw lines

      Right, but they draw them where they want them to be, not where its most convenient to interpret them. Your argued that the only place we should draw lines are such that they be easy to rule on instead of reflecting what people actually want.

    11. Re:Does not make sense by ObsessiveMathsFreak · · Score: 2

      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.

      --
      May the Maths Be with you!
  5. Given that interpretation of what the law says... by Ardyvee · · Score: 3, Interesting

    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?

    --
    I don't care if I'm wrong. I only care about everyone obtaining something from the discussion.
  6. Incoming legislation by daveywest · · Score: 2

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

  7. Re:A new law in not what is needed by Myu · · Score: 5, Insightful

    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.

    --
    Myu: ... The map's upside down...
  8. Re:A new law in not what is needed by mrsquid0 · · Score: 5, Informative

    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.

    --
    Just because you are paranoid does not mean that no-one is out to get you.
  9. Re:Given that interpretation of what the law says. by CanHasDIY · · Score: 2

    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.

    --
    An enigma, wrapped in a riddle, shrouded in bacon and cheese
  10. Re:Given that interpretation of what the law says. by mrsquid0 · · Score: 2

    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.

    --
    Just because you are paranoid does not mean that no-one is out to get you.
  11. New law passed one the following day (today) by Anonymous Coward · · Score: 5, Informative

    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

  12. Re:A new law in not what is needed by ShanghaiBill · · Score: 5, Insightful

    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.

  13. Re:A new law in not what is needed by scuzzlebutt · · Score: 4, Funny

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

    --
    In C++, your friends can see your privates.
  14. Summary Terrible by Stormy+Dragon · · Score: 4, Informative

    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).

  15. Re:A new law in not what is needed by Ralph+Wiggam · · Score: 3, Insightful

    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.

  16. Rule of Law by BarefootClown · · Score: 5, Interesting

    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.

    --

    "Make it ten--I am only a poor corrupt official."
    --Captain Louis Renault (Claude Rains), Casablanca

    1. Re:Rule of Law by khallow · · Score: 2

      Suposedly, judges are wise beyond normal intelligence levels and must be able to interpret the spirit of the law living throughout a law's text.

      They aren't. Come up with a new rationalization.

  17. Re:A new law in not what is needed by meglon · · Score: 5, Insightful
    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.

    --
    Fascism: An authoritarian and nationalistic right-wing system of government and social organization. See also: NAZI's
  18. Re:Wait, what is this? by TFAFalcon · · Score: 5, Insightful

    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.

  19. Re:Given that interpretation of what the law says. by goodmanj · · Score: 4, Informative

    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.

  20. Re:A new law in not what is needed by PolygamousRanchKid+ · · Score: 4, Funny

    Maybe they have cameras in their shoes...

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

    --
    Schroedinger's Brexit: The UK is both in and out of the EU at the same time!
  21. Re:A new law in not what is needed by vettemph · · Score: 3, Interesting

    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.

    --
    The government which is strong enough to protect you from everything is strong enough to take everything from you.
  22. Re:A new law in not what is needed by jxander · · Score: 5, Insightful

    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.

    --
    This signature is false.
  23. Re:Given that interpretation of what the law says. by AmiMoJo · · Score: 3, Funny

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

    --
    const int one = 65536; (Silvermoon, Texture.cs)
    SJW, n: "Someone I don't like, and by the way I'm a fuckwit" - AC
  24. Wow by ArcadeMan · · Score: 2

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

  25. Re:A new law in not what is needed by 228e2 · · Score: 2, Insightful

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

    --
    Since when does being a Socialist mean 'someone who has a different opinion than me'?
  26. Re:A new law in not what is needed by Sancho · · Score: 2

    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.

  27. Re:A new law in not what is needed by Anonymous Coward · · Score: 4, Interesting

    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.

  28. Re:A new law in not what is needed by StripedCow · · Score: 2, Insightful

    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.

    --
    If Pandora's box is destined to be opened, *I* want to be the one to open it.
  29. Your Kids Soccer Game by windwalker13th · · Score: 2

    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.



    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.
  30. Re:A new law in not what is needed by Anonymous Coward · · Score: 2, Insightful

    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").

  31. Re:A new law in not what is needed by farble1670 · · Score: 4, Insightful

    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.

  32. NO!- court says they are not "illegal" by Anonymous Coward · · Score: 3, Insightful

    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.

  33. Re:A new law in not what is needed by Ralph+Wiggam · · Score: 2, Insightful

    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?

  34. Re:A new law in not what is needed by Stormy+Dragon · · Score: 3, Insightful

    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.

  35. Re:A new law in not what is needed by grep+-v+'.*'+* · · Score: 5, Funny

    A judge's job is to interpret the existing law, not make stuff up to conform to what the law should be....

    I agree with that.

    So judges are effectively a CPU, simply executing what's written. (GOTO but not DWIW.)

    But then ... that makes the legislature which write the laws .... OMG, PROGRAMERS! They're one of us!!

    --
    If the universe is someone's simulation -- does that mean the stars are just stuck pixels?
  36. Yes, we do actually believe in the rule of law by SuperBanana · · Score: 2

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

    Examples of this?

    We don't "make up bogus progressive interpretations." We take great pride in the commonwealth's constitution, which aside from being the first in the nation, predating the federal constitution, and in fact serving at its model, is also one of the most protective of individual rights.

    Remember the whole gay-marriage thing, and how MA was one of the first? There's a reason. Our own constitution said we had to treat everybody equally. The courts said "yup, since the state holds the keys to marriage, we gotta treat everybody equally." Case closed. Done.

    Also: stop abusing the term "liberal" in this context. Liberal, in a constitutional and individual freedom/liberty sense, usually more accurately describes the "conservative" side of the political spectrum. It's "conservatives" who keep trying to strip people of their voting rights, for example. It's "conservatives" who most often try to impose religion on others, violating separation of church and state (indeed, "god" was inserted into the pledge of allegiance by a republican, for example, in the mid-1900's.) It is "conservatives" who keep trying to advocate for an unequal tax base that vastly favors the rich. It's "conservatives" who keep trying to violate women's basic human rights (ie control of their bodies.) It's "conservatives" who keep trying to censor. It's "conservatives" who have presented the notion that some people are not deserving of the right of marriage. It's also usually "conservatives" who do most of the warmongering and have pushed a very aggressive foreign policy, especially around preemption.

    All that is, constitutionally, quite "liberal"/radical.

  37. Re:A new law in not what is needed by phayes · · Score: 3, Insightful

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

    No. Get over your prudishness. If you want to flash it, like the girl in the microscopic Brazilian bathing suit that bent over to adjust her beach blanket last week in Miami, then flash it. If you're too prudish to do so other than when you've drunk half a bottle of alcohol to obliterate your self restraint, then that's your problem.

    If you're not comfortable with wearing revealing clothing then don't wear it but don't whine that it's anyone's fault other than your own.

    --
    Democracy is a sheep and two wolves deciding what to have for lunch. Freedom is a well armed sheep contesting the issue
  38. Trim the hedges by PopeRatzo · · Score: 2

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

    It's important to put your best foot forward.

    --
    You are welcome on my lawn.
    1. Re:Trim the hedges by mjwx · · Score: 2

      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.

      --
      Calling someone a "hater" only means you can not rationally rebut their argument.
  39. Re:Wait, what is this? by fustakrakich · · Score: 2

    It's a ruling that protects nobody and puts women at risk.

    And men in kilts! The horror!

    --
    “He’s not deformed, he’s just drunk!”
  40. They just outlawed it. by geekoid · · Score: 2

    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.

    --
    The Kruger Dunning explains most post on /. http://en.wikipedia.org/wiki/Dunning%E2%80%93Kruger_effect
    1. Re:They just outlawed it. by the+eric+conspiracy · · Score: 2

      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!

  41. Re:It shouldn't be illegal even if they were nude by geekoid · · Score: 2

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

    --
    The Kruger Dunning explains most post on /. http://en.wikipedia.org/wiki/Dunning%E2%80%93Kruger_effect
  42. Re:Why not... by mark-t · · Score: 2

    Addressing upskirt photography, It would probably make more sense to make it illegal to photograph anyone in such a way that reveals any more of their body than what they have chosen to reveal to those around them, unless the person being photographed has given informed consent to do so. The intent behind what you suggest is good, but has logistics problems with anyone taking photos in public places where there simply happen to be other people, even if they are not the intended subjects of the picture.

  43. Re:A new law in not what is needed by geminidomino · · Score: 4, Interesting

    I'm sure it's actually still illegal. What it's not, according to the actual case, is on the wrong side of the "anti-peeping tom" law. I'm guessing the prosecutor fucked up, tried to go for a charge with a bigger sentence, and couldn't make it stick.

  44. Re:A new law in not what is needed by roc97007 · · Score: 5, Funny

    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.

    Yes, but don't we want to encourage the wearing of skirts? It's practically the only bright spot about taking public transportation.

    --
    Oliver's law of assumed responsibility: If you're seen fixing it, you will be blamed for breaking it.
  45. Re:A new law in not what is needed by phantomfive · · Score: 3, Informative

    Apparently the law has already been passed. Lawmakers know how to take action that will put them in the headlines.

    --
    "First they came for the slanderers and i said nothing."
  46. Re:A new law in not what is needed by lgw · · Score: 3, Insightful

    The second amendment says that I can own an ICBM.

    Perhaps you could argue that an ICBM is a bit too heavy to "bear", but for most of US history, artillery was privately purchased and donated to towns and cities for defense. IIRC as late as Teddy Roosevelt we'd go to war with artillery that just some guys bought, bought the mules to haul it, and brought with them to the war (in addition to what the army itself had, but that was often inadequate and the supplemental pieces were welcomed).

    If you're uncomfortable with your neighbor owning an ICBM (I know I am), we can amend the constitution, using the mechanism provided. We should just creatively interpret it, because that is precisely what led to losing most of the protections in the Bill of Rights.

    Because it's convenient to allow creative interpretation instead of actually amending the Constitution, we've lost much of the point of it all!

    --
    Socialism: a lie told by totalitarians and believed by fools.
  47. Re:Why not... by Jane+Q.+Public · · Score: 2

    "Addressing upskirt photography, It would probably make more sense to make it illegal to photograph anyone in such a way that reveals any more of their body than what they have chosen to reveal to those around them, unless the person being photographed has given informed consent to do so."

    This is so vague as to be unworkable. What did the subject "choose" to do? ("Honest officer, she was flashing me on purpose!") What constitutes "permission"? Written permission? (There goes the evening news.) Police arresting somebody? (There goes protection against police brutality.) Etc. and so on, ad nauseum.

    If you really want to pass a law, you have to draw a hard line somewhere. You can't leave it up to the whim of either the subject being photographed, or the photographer. Vagueness is societal poison when it comes to laws like this.

    Currently, in most places, if it's in public it's photographable. It's really hard to make the law otherwise, and make it stick.

    I remember in the late 60s, when the Berkely Barb put a picture of a woman in a miniskirt and no underwear on their front page. There was a lot of debate about it, as you can well imagine. The consensus was that while it showed bad taste on the part of the Barb, it was public so nobody had any genuine reason to complain.

  48. Re:It shouldn't be illegal even if they were nude by Sentrion · · Score: 3, Insightful

    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.

  49. Re:A new law in not what is needed by Sancho · · Score: 3, Insightful

    If the law didn't specify what "partial nudity" means, then I think the ruling is perfectly valid. What is partial nudity? Can someone go out in public "partially nude?" Can they be arrested for that?

    I don't think it's fair to use one the standard differently. A person should not be partially nude while out in public.

    The error here is not on the judge's part, but on the legislature's. If the legislature had better defined their terms, there wouldn't be ambiguity. If they had specified that these kinds of photos were illegal, there wouldn't be a question here. They did not, and so the judges (who are upholding the law, not their opinions of it) made the right call.

    Even if it means a pervert is still on the streets.

  50. Re:A new law in not what is needed by noh8rz10 · · Score: 2

    The whole point of the law was to outlaw the invasive photography known as "upskirts". Everyone is fine with a society in which people wear skirts but people don't do "upskirts". How can we make this happen?

  51. Marbury v. Madison (1803) by Valdrax · · Score: 4, Insightful

    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.

    You need to really read Marbury v. Madison (1803). The Court really lays out the reason why they have to. The judges must hold every law up to the standards of the Constitution, if they do not judge the Constitutionality of laws, then the Constitution has no meaning, because Congress can pass any law they feel like, and there is no one else who can say, "Hey, I don't think that law is actually legal."

    Without anyone to actually enforce the Constitution, it's a meaningless piece of paper.

    The constitution is written in plain English.

    That's actually, in many ways, the problem. If the Constitution were written out in far more formal language, there would be less wiggle room and thus less need for interpretation.

    --
    If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
    1. Re:Marbury v. Madison (1803) by thegarbz · · Score: 3, Interesting

      You read 5 words and even got them wrong. Let's actually go through how clear it really is:

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

      Define: Religion. Is Scientology a religion or a cult?
      Define: Exercise. Are we talking about calm prayer or does your religion require you to lock down a city and hold people hostage?
      Define: Freedom of speech. Is lying to congress freedom of speech?
      Define: Press. Is anyone potentially press like bloggers or just old news establishments?
      Define: Peaceably. At what point do you say enough is enough? Are people allowed to permanently squat in a public park?
      Define: Grievances. This is perhaps the most open of the lot.

      This is just one bloody sentence and yet has 6 potential points which are anything from clear without an exact definition. I'm also no lawyer, I'm sure a trained sleezebag could find even more problems with that sentence.

  52. Re:A new law in not what is needed by s.petry · · Score: 2

    I agree with your points, but partial nudity by itself is perfectly ambiguous. The error is still with the judges who used this definition to claim it did not count as nudity.

    All languages have ambiguity and it's nearly impossible to rule it out of legislature. In fact some of the best legislature in history is ambiguous intentionally (I'm sure you have read the founding documents for the USA). Language imperfections are why we are supposed to have judges with at least a shred of common sense. This one is not as bad as the judge accepting Clinton argument about the definition of "is", but it's up there.

    --

    -The wise argue that there are few absolutes, the fool argues that there are no probabilities.

  53. Re:A new law in not what is needed by meglon · · Score: 2
    --
    Fascism: An authoritarian and nationalistic right-wing system of government and social organization. See also: NAZI's
  54. Re:Illegal to by Workaphobia · · Score: 2

    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?

    --
    Evidently, the key to understanding recursion is to begin by understanding recursion. The rest is easy.
  55. Re:A new law in not what is needed by Jason+Levine · · Score: 4, Insightful

    Some here seem to think that the only types of skirts around are the ones that are so short that barely anything is hidden. Skirts come in different lengths. Perhaps the woman thought she was covered up and the skirt hiked itself up in just the right way so that something was visible. Perhaps the pervert just used shoe cameras, pretended to be stooping on the ground to tie his shoes, or some other ploy to take photos up women's skirts. The women obviously didn't consent to this so he shouldn't be allowed to do this.

    Don't get me wrong. I understand that you don't get to walk around outside and then claim people taking your photograph are invading your privacy. There's no reasonable expectation of privacy when you are walking outside, but there are limits to that. Everyone has a reasonable expectation of privacy under their clothes. A woman wearing a skirt is not an invitation to take a photo up the skirt any more than a man wearing shorts is an invitation to take a photo up the shorts leg.

    --
    My sci-fi novel, Ghost Thief, is now available from Amazon.com.
  56. Re:A new law in not what is needed by Jason+Levine · · Score: 4, Insightful

    Wait. This actually makes sense. Only instead of coding perfectly legible code, legislators are the kind of coders that craft spaghetti code which has tons of bugs, unforeseen glitches, hidden functions to give their friends back doors through the system, and which can't be read by another human being without them going cross-eyed.

    --
    My sci-fi novel, Ghost Thief, is now available from Amazon.com.
  57. Re:A new law in not what is needed by Anonymous Coward · · Score: 2

    +1 Upsightful

  58. Re:Smooth move, judge by AK+Marc · · Score: 2

    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.

  59. Re:A new law in not what is needed by misexistentialist · · Score: 2

    A woman wearing a skirt is not an invitation to take a photo up the skirt any more than a man wearing shorts is an invitation to take a photo up the shorts leg.

    There is never an invitation, and if you were photographing women's legs there would still be an effort to bring trumped up charges. Especially if the recordings were secret...maybe even made with Google Glass! Female sexual hysteria overrides everything, and indeed no one questions taking pictures up men's shorts (granted, in the seated position) to use as evidence for their arrest on exposure charges or for vigilante internet campaigns.

  60. This was a problem at an anime convention once... by seebs · · Score: 2

    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.

    --
    My blog: http://www.seebs.net/log/ --- My iPhone/iPad app: http://www.seebs.net/seebsfrac/
  61. Re:A new law in not what is needed by Vellmont · · Score: 2


    Because it's convenient to allow creative interpretation instead of actually amending the Constitution, we've lost much of the point of it all!

    Pssstt.. I've got a secret for you. The founding fathers didn't know how to interpret the damn thing either. They couldn't agree, so they just made the bill of rights rather vague and put in place the power of the courts to interpret the law. So "creative interpretting" as you put it was always the intent.

    If your idea is to amend the constitution to be clear about everything, you're going to have to do a LOT of amending. How many Supreme court decisions are there every year? That's gives you a very small idea of the role of the supreme court. You really want to amend the constitution that much? Think it's hard to interpret now.. think about if we amended it ever month.

    Remeber, the constitution was intentionally made to be rather difficult to amend. I sure as hell don't want to make it easier.

    --
    AccountKiller
  62. Re:A new law in not what is needed by Darby · · Score: 3, Interesting

    Next time you see some one doing an up-skirt don't look away, look right at the person and make it clear you see him (or her) and do not approve.

    I have a friend who used to do shit like that. Not like super duper creepy, but opportunistically.

    We were all out at a bar one time and he's walking back to the table, sees this girl in a short skirt facing away from with at a "good" angle.

    He starts lining up the shot and his girlfriend goes up to the girl and says, "Excuse me, there's some pervert over there trying to take a picture of your underwear".
    The girl looks around sees him calls him a pervert and we all bust out laughing.

    Don't fuck with Lisa. They've been married a long time now ;-)
     

  63. Re:A new law in not what is needed by Rose+is+here · · Score: 2

    Stupid, it's not about being comfortable, it's about men violating women's privacy to get their jollies. It's about men sticking a camera up a woman's skirt to take pictures. That's not the woman's fault, that's the man's fault, no matter how short the woman's skirt is.

  64. Re:A new law in not what is needed by DrLang21 · · Score: 3, Insightful

    if my girl decides to stop occasionally going panty-less (exciting to both of us) because of a few pervs, then this idiotic up-skirt photography behavior should be stopped.

    What exactly about doing this makes it exciting if not for the real risk of someone noticing? If that risk didn't exist, it would be no different than going commando with jeans.

    --
    I see the glass as full with a FoS of 2.
  65. Re:A new law in not what is needed by gorzek · · Score: 2

    So much victim-blaming language going around here. "Hey, nobody would take pictures of her if she'd just stop wearing skirts!" Gee, maybe it's the douchebag taking the pictures that's the problem, huh?

    Upskirt photos don't just "happen," they're taken intentionally by people who are willfully invading the personal space of another. There are numerous contexts in which one has an expectation of privacy. What is beneath one's skirt is one such context.

    I suppose if someone uses a public bathroom and someone takes photos/videos of them from the adjacent stall, that'd be fine, too? After all, if you didn't want to be photographed, you wouldn't use a public restroom where there are gaps between the stall walls and the floor/ceiling.

    People who are doing nothing wrong shouldn't have to adjust their behavior in order to thwart miscreants. The law should side against the miscreants.