Slashdot Mirror
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."
BRB got some photography to do.
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.
"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~
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
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.
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 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.
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
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.
No, It's time to put GoPro's on my shoes and head to Boston!
In C++, your friends can see your privates.
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).
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.
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
....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
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.
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.
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!
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.
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.
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
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.
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.
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.
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.
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.
... that makes the legislature which write the laws .... OMG, PROGRAMERS! They're one of us!!
So judges are effectively a CPU, simply executing what's written. (GOTO but not DWIW.)
But then
If the universe is someone's simulation -- does that mean the stars are just stuck pixels?
. . 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
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.
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.
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."
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.
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.
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.
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").
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.
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.
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 ;-)
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.