"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."
No. Not "easy to rule on". Just possible to rule on. I realize people have good intentions, but for a law to be just there has to be a rational basis for judging. "I didn't intend to flash him" is not evidence of anything. She could have done it intentionally just to get him in trouble with the law.
The argument that the target was deliberately flashing you, however, would require either an explicit statement after the fact that they admit to doing as much, or lacking any such statement because the subject is unknown, it would require that under the circumstances, it would have been expected and reasonable for the subject to have known about your presence and your intent to photograph them (ie, both yourself and your camera must have been plainly visible, and not concealed from their view in any way).
You are merely illustrating why the law cannot reasonably be written that way: people lie.
Women lie about consent for sex. Men lie about reasons for assault. People say they intended to do one thing when they actually did another. Then they change their minds and say they actually intended some 3rd thing.
There is VERY seldom any practical way to demonstrate in court what you INTENDED to do. Only what you did. So as an observer, if you do something, it is reasonable for me to think you intended to do it. Anything else requires me to read your mind, which is not a viable basis for court evidence.
"My word about this is better that yours" is also not a viable basis for law.
Correction: that's what the judge in this case DID rule. However, the State has apparently already passed legislation which says differently.
But that is the whole point of the discussion here: where to draw the line? (Because there IS a line, and it is in different places in different states.)
(As an aside, a bit off-topic: when Slashdot changed the posting time limit from 1 minute to 5 minutes, they made corrections like this a lot harder to do. I spend far more time these days hitting "submit", hoping the 5 minutes had passed, than I ever did making actual posts. I bet their bandwidth costs actually went up, not down.)
"Sorry, the anti-abortion issue is very political and this is a heavy handed fine on a charity."
Well, I'm not that familiar with UK law, but like the U.S. it is still Common Law tradition.
Why is it a "heavy-handed" fine? It seems to me that when an organization endangers members of the public via negligence, they should receive a penalty that is sufficient to motivate them to change their practices.
It seems to me that the annual salary of a couple of professionals, who probably ought to be fired anyway, seems about right.
How we can call "business" the relationship between Fedora and persons A and B?
I would say that if it's a restricted exports country, Fedora should not be helping B use Fedora in the first place.
And why is A contributing if it's illegal for him to receive any benefit from it?
The point here was not about whether a country should be restricted or not. The point is: should the U.S. be able to stop a for-profit company from contributing to the well-being of a restricted exports country?
And make no mistake: open source or not, Redhat is a for-profit company.
Sorry, but that's just false. In my lifetime I've been in LOTS of situations in which things under a dress were made public... intentionally or otherwise. But at least some of those times were definitely intentional.
The whole point here is that it's impossible for a court to determine whether it is intentional or not, so trying to base a law on that would lead to injustices.
"You determine what the person chose to reveal..." [emphasis added]
This calls for determining what the person chose to do versus what they actually did.
It should be blatantly obvious that there is no way for a court to determine this. It's one person's word against another's. That's WHY the law doesn't already work that way.
"The questions this brings up by your A and B is "You are okay with this behavior?" followed by "What if you don't realize some pervert took the picture and the pervert, publishes it without a face?""
The latter question was already addressed: you didn't give permission for that "personal" picture and so should not be able to use it without your permission. After all; it isn't a picture of the subway train with you just happening to be in it. It's a picture of YOU.
But your description of the situation brings up the classic problem that intent is almost impossible to establish in court, for situations like this. How could you prove that you didn't intend to expose yourself? And the argument that "it's obvious" doesn't wash... people try to frame other people all the time.
"Isn't your A just a variant of the 'she was asking for it' excuse which we hear so often in other crimes of sexual/perverse nature?"
NO, it most definitely is not. It is a variant of "we have no way to prove intent but the law HAS TO draw a line somewhere".
You can't base laws on what people were thinking at the time. It just doesn't work.
"Let me tell you outright, you are explicitly wrong. Paparazzi exist to make a profit off public photos without people's permission. There is no such right or law that proves otherwise."
You can "tell me" all you like, but unless you produce a law that says so, it's all hot air.
You missed my point about whether it is a picture of THE STREET with people on it, or a picture primarily of A PERSON, with the street in the background.
Where is the precise point in the law? I don't know.
Trust some AC on Slashdot to try to turn it into a political issue.
It's about time that some of these organizations (including banks and others) who store personal data were held responsible for their lack of security. It has been a real problem.
Let's leave the politics out of it. The organization messed up, resulting in potential harm to the public who used its services. The court wants to hold them responsible for their messup. End of story.
"Well-established" or "well-proven" are more accurate terms but sound like severe understatements in some cases...
Except that neither apply to "greenhouse gas warming". There is lots of contrary science (although you don't generally hear about it on the news), and the evidence in favor has been weakening on an almost daily basis. In fact, there is quite a bit of evidence gathered by now that shows some researchers have been... well, let's just say "irresponsible" with their data.
" However, if the person is in the middle of a public area, they have no expectation of privacy and can't regulate what I do and do not take photos of."
Generally speaking, in the U.S., it is already illegal to publish photographs of people for profit without their permission.
I agree that you should be able to take photographs of public places and of people in those public places, though. I am sure there is a line there too, but I'm not sure exactly where it is. Maybe (just speculating), if the photograph is mainly of a public place, and the people in it are just incidental. If the picture is primarily OF a person, though, I think you should normally need permission.
But what about the news? There are definitely gray areas. I'd like to know what current law is. I know it varies from state to state.
"You determine what the person chose to reveal with regards to what is actually plainly visible to anyone who was *not* attempting to see beneath any layers of clothing without the person's informed consent. "
That's the most ridiculous thing I've ever heard. Now you're proposing to pass a law against "thought crime", based on somebody else's thoughts. That would be completely impossible to enforce in practice:
"Honest officer, no I wasn't wearing any underwear but I didn't intend to uncross my legs. I just forgot. Throw the pervert in jail!"
You might think that's a silly example but I assure you it's not. It's not possible for the photographer to know in advance what the other person "intends". You would be setting the stage for lots of people to go to jail for something THEY didn't intend to do (violate someone's privacy according to the law).
You can't base laws like this on what someone intends. For the simple reason that it is impossible to determine what they intended. People lie.
"Such consent would require, at an absolute barest of minimums, at least explicit verbal permission."
So, as I said before: somebody is walking in public so you can't take their picture without explicit consent? Well, nobody will be taking pictures of the Washington Monument anymore. Or those nice little pictures of downtown scenes. Or about 1000 more things I can think of just off-hand. Definitely no more pictures of police brutality. Do you honestly expect them to give you permission? Not to mention security camera videos of crimes taking place. "No, your honor, I had to throw the video away because the subjects did not give me permission."
If it's in public, it's photographable. With very few exceptions. It HAS TO be that way, if you want to have anything like a democratic society.
"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.
"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.
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
I'd be careful about trying that if I were them. The "perve", as you say, could just as easily (and plausibly, these days) say taking the film or photo was your own idea, to tease your boyfriend or something.
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.
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.
"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.
Slashdot Mirror
"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."
No. Not "easy to rule on". Just possible to rule on. I realize people have good intentions, but for a law to be just there has to be a rational basis for judging. "I didn't intend to flash him" is not evidence of anything. She could have done it intentionally just to get him in trouble with the law.
"I lolled. Oh how I wish this were true. It hasn't been the case for over a decade."
Haha. I won't argue with you there. I guess there should have been a "supposed to be" in there somewhere.
The argument that the target was deliberately flashing you, however, would require either an explicit statement after the fact that they admit to doing as much, or lacking any such statement because the subject is unknown, it would require that under the circumstances, it would have been expected and reasonable for the subject to have known about your presence and your intent to photograph them (ie, both yourself and your camera must have been plainly visible, and not concealed from their view in any way).
You are merely illustrating why the law cannot reasonably be written that way: people lie.
Women lie about consent for sex. Men lie about reasons for assault. People say they intended to do one thing when they actually did another. Then they change their minds and say they actually intended some 3rd thing.
There is VERY seldom any practical way to demonstrate in court what you INTENDED to do. Only what you did. So as an observer, if you do something, it is reasonable for me to think you intended to do it. Anything else requires me to read your mind, which is not a viable basis for court evidence.
"My word about this is better that yours" is also not a viable basis for law.
Correction: that's what the judge in this case DID rule. However, the State has apparently already passed legislation which says differently.
But that is the whole point of the discussion here: where to draw the line? (Because there IS a line, and it is in different places in different states.)
(As an aside, a bit off-topic: when Slashdot changed the posting time limit from 1 minute to 5 minutes, they made corrections like this a lot harder to do. I spend far more time these days hitting "submit", hoping the 5 minutes had passed, than I ever did making actual posts. I bet their bandwidth costs actually went up, not down.)
The judge in this case just ruled differently.
That's what the whole conversation is about.
"Sorry, the anti-abortion issue is very political and this is a heavy handed fine on a charity."
Well, I'm not that familiar with UK law, but like the U.S. it is still Common Law tradition.
Why is it a "heavy-handed" fine? It seems to me that when an organization endangers members of the public via negligence, they should receive a penalty that is sufficient to motivate them to change their practices.
It seems to me that the annual salary of a couple of professionals, who probably ought to be fired anyway, seems about right.
I already linked you to an article about it. I do not understand why you keep asking.
Figures. Make a comment that contradicts the politically correct dogma, get downmodded on Slashdot.
Well, I apologize for challenging your religion. Not.
How we can call "business" the relationship between Fedora and persons A and B?
I would say that if it's a restricted exports country, Fedora should not be helping B use Fedora in the first place.
And why is A contributing if it's illegal for him to receive any benefit from it?
The point here was not about whether a country should be restricted or not. The point is: should the U.S. be able to stop a for-profit company from contributing to the well-being of a restricted exports country?
And make no mistake: open source or not, Redhat is a for-profit company.
What's under your skirt isn't "in public".
Sorry, but that's just false. In my lifetime I've been in LOTS of situations in which things under a dress were made public... intentionally or otherwise. But at least some of those times were definitely intentional.
The whole point here is that it's impossible for a court to determine whether it is intentional or not, so trying to base a law on that would lead to injustices.
"Wow... where's thought crime coming from?"
From this:
"You determine what the person chose to reveal..." [emphasis added]
This calls for determining what the person chose to do versus what they actually did.
It should be blatantly obvious that there is no way for a court to determine this. It's one person's word against another's. That's WHY the law doesn't already work that way.
"The questions this brings up by your A and B is "You are okay with this behavior?" followed by "What if you don't realize some pervert took the picture and the pervert, publishes it without a face?""
The latter question was already addressed: you didn't give permission for that "personal" picture and so should not be able to use it without your permission. After all; it isn't a picture of the subway train with you just happening to be in it. It's a picture of YOU.
But your description of the situation brings up the classic problem that intent is almost impossible to establish in court, for situations like this. How could you prove that you didn't intend to expose yourself? And the argument that "it's obvious" doesn't wash... people try to frame other people all the time.
"Isn't your A just a variant of the 'she was asking for it' excuse which we hear so often in other crimes of sexual/perverse nature?"
NO, it most definitely is not. It is a variant of "we have no way to prove intent but the law HAS TO draw a line somewhere".
You can't base laws on what people were thinking at the time. It just doesn't work.
"Let me tell you outright, you are explicitly wrong. Paparazzi exist to make a profit off public photos without people's permission. There is no such right or law that proves otherwise."
You can "tell me" all you like, but unless you produce a law that says so, it's all hot air.
"Maybe in Indiana, but generally, no."
You missed my point about whether it is a picture of THE STREET with people on it, or a picture primarily of A PERSON, with the street in the background.
Where is the precise point in the law? I don't know.
"so they got an anti-abortion judge"
Trust some AC on Slashdot to try to turn it into a political issue.
It's about time that some of these organizations (including banks and others) who store personal data were held responsible for their lack of security. It has been a real problem.
Let's leave the politics out of it. The organization messed up, resulting in potential harm to the public who used its services. The court wants to hold them responsible for their messup. End of story.
"Well-established" or "well-proven" are more accurate terms but sound like severe understatements in some cases...
Except that neither apply to "greenhouse gas warming". There is lots of contrary science (although you don't generally hear about it on the news), and the evidence in favor has been weakening on an almost daily basis. In fact, there is quite a bit of evidence gathered by now that shows some researchers have been... well, let's just say "irresponsible" with their data.
Expect some big news within a couple of weeks.
" However, if the person is in the middle of a public area, they have no expectation of privacy and can't regulate what I do and do not take photos of."
Generally speaking, in the U.S., it is already illegal to publish photographs of people for profit without their permission.
I agree that you should be able to take photographs of public places and of people in those public places, though. I am sure there is a line there too, but I'm not sure exactly where it is. Maybe (just speculating), if the photograph is mainly of a public place, and the people in it are just incidental. If the picture is primarily OF a person, though, I think you should normally need permission.
But what about the news? There are definitely gray areas. I'd like to know what current law is. I know it varies from state to state.
"You determine what the person chose to reveal with regards to what is actually plainly visible to anyone who was *not* attempting to see beneath any layers of clothing without the person's informed consent. "
That's the most ridiculous thing I've ever heard. Now you're proposing to pass a law against "thought crime", based on somebody else's thoughts. That would be completely impossible to enforce in practice:
"Honest officer, no I wasn't wearing any underwear but I didn't intend to uncross my legs. I just forgot. Throw the pervert in jail!"
You might think that's a silly example but I assure you it's not. It's not possible for the photographer to know in advance what the other person "intends". You would be setting the stage for lots of people to go to jail for something THEY didn't intend to do (violate someone's privacy according to the law).
You can't base laws like this on what someone intends. For the simple reason that it is impossible to determine what they intended. People lie.
"Such consent would require, at an absolute barest of minimums, at least explicit verbal permission."
So, as I said before: somebody is walking in public so you can't take their picture without explicit consent? Well, nobody will be taking pictures of the Washington Monument anymore. Or those nice little pictures of downtown scenes. Or about 1000 more things I can think of just off-hand. Definitely no more pictures of police brutality. Do you honestly expect them to give you permission? Not to mention security camera videos of crimes taking place. "No, your honor, I had to throw the video away because the subjects did not give me permission."
If it's in public, it's photographable. With very few exceptions. It HAS TO be that way, if you want to have anything like a democratic society.
"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.
"How do you determine who isn't a public figure?"
The same way it's decided in defamation and libel cases. The courts already have a way to do it.
"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.
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
I'd be careful about trying that if I were them. The "perve", as you say, could just as easily (and plausibly, these days) say taking the film or photo was your own idea, to tease your boyfriend or something.
"Public shaming" can work both ways.
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.
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.
"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.