Feeds

Alleged Peeping Tom claims First Amendment right to upskirt

Legal history in the making in Boston courtroom

Security for virtualized datacentres

The Massachusetts Supreme Judicial Court is mulling just whether an alleged upskirter's right to snap women's nether regions is defended by the US constitution, and indeed whether women who unwittingly expose themselves in public have any right to privacy.

Michael Robertson, 31, was cuffed back in 2010 for allegedly attempting to upskirt female passengers on Boston’s Green Line subway with his mobile phone. He's charged with "two counts of photographing an unsuspecting nude or partially nude person", the Eagle Tribune reports.

The accused wasn't in court on Monday as his attorney, Michelle Menken, claimed to seven justices that "the laws regarding taking unwanted pictures of women are outdated and actually protected under the First Amendment".

Specifically, Menken insisted that existing "Peeping Tom" laws "protect women and men from being photographed in dressing rooms and bathrooms [sic] who are nude or partially nude". Since "the women in the photographs cannot be considered partially nude because their underwear covered everything and no private parts could be seen in the pictures taken".

“They have to be in an exposed state to violate the current law and these women were not," Menken noted.

She added: "If a clothed person reveals a body part whether it was intentional or unintentional, he or she can not expect privacy."

Attorney Cailin Campbell, for the state, disagreed, countering: "There is an understandable expectation that one can have on not being photographed like that in that kind of setting."

Campbell then told the justices that since the matter was of "upskirt photos of women, they can be considered partially nude even if they were fully clothed".

This prompted Justice Ralph Gants to observe: "So by that standard, everyone in this courtroom could be considered partially nude."

Evidently, the case hangs on the definition of "partially nude", and the court has previously sought clarification.

The justices must, however, also consider whether Robertson is someone who "wilfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity", as the law states.

“The use of a cellphone in public is not secret surveillance,” Menken declared.

Furthermore, there's the matter of the accused's constitutional rights. Menken argued that not only was her client not guilty under current law, but that that were he convicted, his First Amendment rights might be violated.

She said: "For example, say a woman is breast feeding in public and someone who is morally opposed to this or even a journalist takes a picture. The woman may be covered but for some reason the picture shows a little bit of her breast. Now, that person who took the photo can be charged with the same thing."

Justice Gants asked state attorney Campbell: "What if a photographer is doing a project of people on the subway or out in public and he wants to get candids. Can he now not do that?"

Campbell replied: "Just because somebody wants to take a picture, doesn’t mean they should." ®

Intelligent flash storage arrays

More from The Register

next story
Scrapping the Human Rights Act: What about privacy and freedom of expression?
Justice minister's attack to destroy ability to challenge state
DVLA website GOES TITSUP on day paper car tax discs retire
Welcome to GOV.UK - digital by de ... FAULT
WHY did Sunday Mirror stoop to slurping selfies for smut sting?
Tabloid splashes, MP resigns - but there's a BIG copyright issue here
Hey Brit taxpayers. You just spent £4m on Central London ‘innovation playground’
Catapult me a Mojito, I feel an Digital Innovation coming on
EU probes Google’s Android omerta again: Talk now, or else
Spill those Android secrets, or we’ll fine you
Google hits back at 'Dear Rupert' over search dominance claims
Choc Factory sniffs: 'We're not pirate-lovers - also, you publish The Sun'
EU to accuse Ireland of giving Apple an overly peachy tax deal – report
Probe expected to say single-digit rate was unlawful
Inequality increasing? BOLLOCKS! You heard me: 'Screw the 1%'
There's morality and then there's economics ...
While you queued for an iPhone 6, Apple's Cook sold shares worth $35m
Right before the stock took a 3.8% dive amid bent and broken mobe drama
prev story

Whitepapers

Forging a new future with identity relationship management
Learn about ForgeRock's next generation IRM platform and how it is designed to empower CEOS's and enterprises to engage with consumers.
Storage capacity and performance optimization at Mizuno USA
Mizuno USA turn to Tegile storage technology to solve both their SAN and backup issues.
The next step in data security
With recent increased privacy concerns and computers becoming more powerful, the chance of hackers being able to crack smaller-sized RSA keys increases.
Security for virtualized datacentres
Legacy security solutions are inefficient due to the architectural differences between physical and virtual environments.
A strategic approach to identity relationship management
ForgeRock commissioned Forrester to evaluate companies’ IAM practices and requirements when it comes to customer-facing scenarios versus employee-facing ones.