Legislators Rush To Patch Hole In 'Secret Photography' Law; 'Succeed' In Making It Make It Much, Much Worse
from the fixitfixitfixitfixitfixitfixitfixit! dept
The law is an ass. This has been true since well before Charles Dickens cranked out Oliver Twist in order to fulfill his four-book contract with Penguin Classics. We also hear quite frequently how the law's ass-ish gears (sorry, some metaphors are going be forcibly combined here) grind slowly, eventually birthing justice itself or, far more frequently, suffering a miscarriage.
Sometimes, however, the law is like an ass operating a second-rate rollercoaster for a third-rate traveling carnival in a fourth-rate town. It lurches forward and backward like a carny with a .28 BAC (also known as "cruising altitude"), with one hand lazily manipulating the rusty throttle/brake on this metaphorical coaster, giving every rider the opportunity to lose their lunches while simultaneously suffering whiplash.
Here's how everything went down.
On March 5th, the Massachusetts state supreme court found that "upskirt" photography was perfectly legal according to state law. The law, as (was) written, offered no protection for clothed individuals in public places. Dressing rooms, bathrooms, etc. were off-limits, clothed or not, but nothing in the law specifically protected the (clothed) public from people like Michael Robertson, who was caught by police holding his phone at waist-level to capture upskirt photos of fellow subway passengers.
Needless to say, outrage ensued. Instant outrage that ensnared several lawmakers, all of whom immediately rewrote the statute governing "secret photography" in order to prevent the state's pervert contingent from instantly turning every subway car into an (ultimately disappointing) sausage/camera fest.
When I say "immediately," I actually mean it. The rewrite was voted and passed March 6th and signed into law by the governor on the morning of March 7th. Within 48 hours, "upskirting" had gone from "presumably illegal" to "legal" to "very certainly illegal."
As is the case with any law based on instant reaction (you know, rather than a deliberative legislative process), it's problematic in its expansive terminology, as Jay Wolman of The Legal Satyricon points out.
Let me spell it out for you–Massachusetts just made many previously lawful and proper hidden security cameras potentially unlawful.Here's what's being inserted into the state's law governing "Photographing, videotaping or electronically surveilling partially nude or nude person(s):"
According to the new law, it is now unlawful to secretly record images of fully clothed breasts, buttocks and genitals. Full stop. Your nanny thinks she’s alone, but you have a nanny-cam. Sorry, you probably just broke the law. You want to know which of the neighborhood kids have been going into your backyard when you aren’t home and stomping your daisies? That’s double the punishment.
Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person’s clothing to view or attempt to view the person’s sexual or other intimate parts when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public and without the person’s knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 2½ years or by a fine of not more than $5,000, or by both fine and imprisonment.That's a lot of area being covered and none of it very specifically. It relies on a "reasonable person's" view of the intent of the photographer. When that "reasonable person" is a prosecutor, the obvious unintended collateral damage becomes apparent.
Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a child under the age of 18 under or around the child’s clothing to view or attempt to view the child’s sexual or other intimate parts when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public shall be punished by imprisonment in the house of correction for not more than 2½ years, by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $10,000, or by both such fine and imprisonment.
The law practically invites bystanders to point and scream like pod people whenever someone operates a cellphone or camera from lower than eye level. And while it attempts to address the previous law's shortcomings, it seems to leave decolletage enthusiasts free to do their thing (like shooting photos from above passersby, rather than under or around).
But it also turns anything merely questionable (photography-wise) into something potentially actionable. Any "secret" (read: "surveillance") photography could easily become an issue simply because the person being photographed is unaware of the camera's existence.
To expand on Wolman's example: you catch your nanny stealing using your home's camera system, but he or she spins it as "secret photography" and points out the frames that seem to catch him or her in positions that are "revealing." Good luck proving that you didn't set up the camera solely in hopes of catching a nude or nearly-nude nanny at some point in time. For that matter, good luck proving that the above wasn't merely one of the reasons you set up the camera.
And if your nanny is under the age of 18 (or substitute "babysitter" for "nanny"), you're in even more trouble. The prosecutor's not going to hit this law and stop. You'll also be looking at potential child pornography charges.
The state has to prove intent to make charges stick, but all that truly means is that it has to drop these accusations in front of a grand jury (the misdemeanor becomes a felony if the captured images are "distributed") and you're as good as convicted. An indictment looks a lot like a criminal sentence, especially if legislators are breathing (heavily) down prosecutors' necks, urging them to pursue maximum sentences and bail.
So, once again, we see legislative whiplash turning a questionable law into a terrible law. This isn't ever going to change. The only hope is that, once time and distance take their toll, the law will be revisited and repaired. In the meantime, citizens of Massachusetts will need to keep their cameras up high, completely visible and miles away from children, women in skirts, and anyone else whose clothing might reveal something if approached from lower/oblique angles.
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Filed Under: massachusetts, michael robertson, photography, privacy
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"No law shall be enacted or valid if it goes against everyday actions that are socially accepted."
Or something. My English is not up to the challenge. In fact, I think my English is better than many lawmakers up there but really, this should be a concern.
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Sweet!
They can't use hidden cameras to photograph you, because it might break this law!
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You'd think after the Patriot Act and recent disclosures we MIGHT have gotten the fscking memo by now.
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Re:
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The NSA is now complicit in willfully aiding and abetting the thousands of child pornographers now operating in CT
It is my understanding that distributed means being in the custody of more than one "person" so when the NSA or GCHQ strip the images off your store security system network, while you are checking you live feed remotely, that you have now distributed the material. Double burn.
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Worst case scenario, but from a layman's view that sure looks like the charges would be piled on then...
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Not everythng needs a law
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Re: Not everythng needs a law
I'm not quite a senior citizen, but I well remember when people had the amazing capacity to settle their own differences. A serious conflict between gentlemen could be "taken outside", and if a woman was offended by something you said or did, you'd be shunned, berated, or slapped as appropriate and everyone would move on with their lives.
I used to think we'd become more civilized; but having every social interaction potentially monitored by law enforcement and the courts is not an improvement.
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selective-prosecution fodder
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Re: Sweet!
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Re: selective-prosecution fodder
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Re: The NSA is now complicit in willfully aiding and abetting the thousands of child pornographers now operating in CT
According to the MPAA, distribution is simply 'making available' to someone else. The NSA does not need to pull the images, they just need to be able to.
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Re: Not everythng needs a law
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"Under or around the person’s clothing"
"[..] fully clothed breasts, buttocks and genitals."
and
"[...] the sexual or other intimate parts of a person under or around the person’s clothing"
The law seems to be pretty specific about the attempt to circumvent clothing. Children running through your back yard to stomp your daisies? Unless you're putting your security cameras underground pointed straight up a skirt, you're not attempting to circumvent any clothing. As for the nanny example... unless they're intentionally 'accidentally' flashing every potentially-camera-hiding thing in your home, it's not going to happen. The wording seems to be pretty clear-cut on positioning the camera in a way that would reveal parts of someone's body that they have covered. It's not about secretly taking a photo of a person, but about secretly taking a photo of a person up their skirt/kilt, or down their shirt. "It is now unlawful to secretly record images of fully clothed breasts, buttocks and genitals. Full stop." is a blatant lie.
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Re: Re: selective-prosecution fodder
Because the next day every prosecutor would be behind bars.
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Re: Re: Sweet!
Prosecutor: Now, explain what the sex obsessed Mrs. Smith did to you.
Home Robber: Well, I had just broken into her house and grabbed $10,000 from her safe when I... I... saw her hidden camera blinking, aimed at my crotch!
Mrs Smith: This is ridiculous! He just admitted he broke into my house and stole $10,000, he should be getting charged with a crime not me!
Prosecutor: Shut up you mean sex obsessed old lady!
Judge: I've heard enough. Mrs. Smith there's no crime more vile then a sexual pervert trying to secretly record inappropriate pictures of others just to get their sexual high! I sentence you to 30 years in jail, and you have to register as a sex offender for violating this poor innocent man's rights!
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Re: Re: paying attention
"The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown."
- Judge Michael J. Davis
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For example:
Adultery (Sec. 14) Section 14. A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.
Fornication (Sec 18) (What? Section 18. Whoever commits fornication shall be punished by imprisonment for not more than three months or by a fine of not more than thirty dollars. )
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If Only
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Secretly?
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CFAA
Which will be never, if the CFAA is anything to go by.
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"attempt to view the person’s sexual or other intimate parts" The part that's hinging on a 'reasonable person' is for their expectation of privacy, not for what the person with the camera is attempting to do. Taking a personal surveillance video of your own home is not the same as attempting to view a person's intimate parts. Snapping a pic of a busy sidewalk also has nothing to do with attempting to photograph under or behind covered parts of a person. Unless there is some form of attempt to reveal the person, this law doesn't apply.
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Re: Re: Re: selective-prosecution fodder
Nah, prosecutors rarely prosecute themselves.
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I wonder if that applies to lawmakers screwing the public.
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Re: CFAA
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The wording is identical to current laws except "another person who is nude or partially nude" was in the old law and this adds "the sexual or other intimate parts of a person under or around the person’s clothing".
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It seems like the law is set up to specifically address trying to view naughty bits through or around clothing in secret. Standing in public with your phone out taking pictures isn't very secretive. The worst I can see where this might be misused would be the people who take the "hidden" video of girls wearing yoga pants and stuff like that. But even then, they're not trying to put their camera in some position to see around those yoga pants, they're just being oglers/perverts/[your label here].
The nanny/babysitter example is also pretty bad. Unless your nanny cam is in the bathroom (which probably violates other existing laws), one doesn't usually anticipate a nanny/sitter getting fully or partially naked randomly in their house while they're out. I'd be more concerned about why this person was traipsing about my home in their birthday suit when they should be supervising my kids.
Ultimately, even if the law is attempted to be used for unscrupulous suits, a judge and jury should have enough common sense (I know, these days it's so rare it's considered a super power) to realize what the intent of the law is and judge accordingly.
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Re: Not everythng needs a law
True, but I think THIS particular nasty act does.
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No, the old law already covered nudity. The only difference with the new law is that it covers non-nude yet around-clothes recordings. Really, the only new thing the new law would cover, as far as nanny cams go, would be ankle-level cameras.
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Shame is also a horrible 'defense' tactic. Rapists are allowed to serve minimal sentences because people cared more for their futures than they did the woman they raped. Large parts of modern society still feel that the clothes you wear count as consent, that a woman who was raped should shut the hell up and burning her home down is due justice, that a young black man in a hoodie eating skittles is threatening enough to kill, that two people in love deserve to be brutally murdered and eternally tortured just because they're of the same sex.... And this is 2014. Unless you're part of the palpable privileged, chances are you're going to be on the wrong end of popular opinion.
I could also go into the vast history of oppression and discrimination that thrived under a system where only the physically strong and genetically lucky folks called all the shots. Just because the system has worked in your favor doesn't mean it has for others, or even that it hasn't worked against them before.
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Re: Re: Re: Not everythng needs a law
Heck, even the court that overturned the conviction said that what happened SHOULD be illegal, even though it wasn't.
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This is just a really poor joke, right? It has to be. Being violated in public by a stranger is horrendously scarring! I'm going to work off the assumption that you are a guy, seeing as sexual harassment is less common (not nonexsistant) and not something you generally have to fear on a regular basis. How else can you possibly even begin to imagine that having someone shove a camera at your crotch is not traumatizing? You are essentially being disrobed in a public space by a total stranger who is helping himself to your vagina against your will. And anyone could do this to you. Anyone, anywhere, at any time, can just help themselves to photographing you in your underwear, and there is nothing you can do about it.
Do you understand anything about rape culture? The idea that a woman has no agency over her body if a man decides he's fond of it. That a woman dressed in a certain way is "asking for it", and that culture as a whole polices women to be afraid and ashamed of their bodies while simultaneously handing themselves over to anyone nice enough to them. While they're simply told to not get raped, while men are never told to not rape. Do you understand how much fear is involved in traveling alone, or at night? When people actually think that violating her doesn't actually cause any /real/ harm.
I am just completely baffled at someone not being able to understand the psychological consequences of being sexually violated. I don't face much if any general harassment on a daily basis, but it's not difficult for me to think for just a few minutes and understand the difficulties other people have to face.
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Re: Re: Re: Re: Not everythng needs a law
"I'm going to work off the assumption that you are a guy, seeing as sexual harassment is less common (not nonexsistant) and not something you generally have to fear on a regular basis."
I am a guy, yes, but the rest of your assumptions are wildly incorrect.
"having someone shove a camera at your crotch is not traumatizing?"
We aren't talking about people doing that -- there's already at least one law that covers that: assault, and maybe sexual assault. But taking a secret photo of underwear? That's a far cry from shoving a camera into anybody's crotch.
"Anyone, anywhere, at any time, can just help themselves to photographing you in your underwear, and there is nothing you can do about it."
The law doesn't change that fact.
"Do you understand anything about rape culture?"
Much better than you think I do.
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Bullshit. You're making a conscious choice to expose yourself in public. Nobody is touching you. You're seriously equating someone photographing in a public place with rape? Unfortunately such poor analogies and unfounded accusations are only going to hurt your cause.
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Re: Re: Re: Re: Re: Not everythng needs a law
I think that goes a bit too far. This law only applies when someone intentionally photographs AROUND the clothing which would normally be concealing that area. If the person is intentionally exposing the area it does not apply. Yes, they could probably prevent it by wearing pants instead of a skirt, but wearing a skirt is a far cry from intentional exposure.
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Yep. I realize that intent can be a tricky thing in law, but we use it all the time. I'm looking at the Wisconsin state laws and it's everywhere, from major crimes to minor ones.
"...whoever causes the death of another human being with intent to kill that person or another..." "Whoever causes bodily harm to another by an act done with intent to cause bodily harm..." "...whoever by force or threat of imminent force seizes, confines or restrains a person without the person's consent and with the intent to use the person as a hostage..." "Any peace officer... who intentionally fails to render or make arrangements for any necessary first aid for any person in his or her actual custody..." "Whoever mutilates, disfigures or dismembers a corpse, with intent to conceal a crime..." "Whoever knowing the vicious propensities of any animal intentionally allows it to go at large..."
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The bigger issue...
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What about the TSA?
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Re: Re: Re: Re: Re: Not everythng needs a law
Basically, it's the intent that's the problem; some weirdo perving it up on pics of your privates (and possibly making them public). I think it would be better to frame it as a form of sexual harassment and take it from there rather than make a law prohibiting certain camera angles, that's just stupid. Besides, people tend to find ways around these things so I doubt it'd be effective.
While the degree of how violated you feel will differ from act to act and in accordance with the personal history of the person on the receiving end, it's not fair to trivialize the act of sexual harassment by camera. It is, as the AC stated, an aspect of the rape culture and it is right and proper to push back against it.
I believe in traditional family values, and by that I mean promoting respect for the person and the person's person. True freedom means not being afraid to go out in public wearing a skirt if you're a woman, not the "right" to do what the hell you like to a woman.
I agree with you that it's not necessarily harmful to have an embarrassing picture taken but I don't think it's okay to do it, is what I'm saying.
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It's obvious to anyone with even half a brain that Zimmerman, despite having black members of his own family, was a psychotic racist who intentionally stalked and murdered sweet, innocent Trayvon as he cowered in fear and begged for his life, and then slammed his own head into the concrete, probably while laughing maniacally about how he was going to get away with murder.
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