Feeds

Alleged Peeping Tom claims First Amendment right to upskirt

Legal history in the making in Boston courtroom

High performance access to file storage

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his attorney, Michelle Menken, claimed to seven justices that "the laws regarding taking unwanted pictures of women are outdated and actually protected under the First Amendment".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." ®

Combat fraud and increase customer satisfaction

More from The Register

next story
Putin tells Snowden: Russia conducts no US-style mass surveillance
Gov't is too broke for that, Russian prez says
One year on: diplomatic fail as Chinese APT gangs get back to work
Mandiant says past 12 months shows Beijing won't call off its hackers
Record labels sue Pandora over vintage song royalties
Companies want payout on recordings made before 1972
Lavabit loses contempt of court appeal over protecting Snowden, customers
Judges rule complaints about government power are too little, too late
MtGox chief Karpelès refuses to come to US for g-men's grilling
Bitcoin baron says he needs another lawyer for FinCEN chat
Don't let no-hire pact suit witnesses call Steve Jobs a bullyboy, plead Apple and Google
'Irrelevant' character evidence should be excluded – lawyers
Edward Snowden on his Putin TV appearance: 'Why all the criticism?'
Denies Q&A cameo was meant to slam US, big-up Russia
Judge halts spread of zombie Nortel patents to Texas in Google trial
Epic Rockstar patent war to be waged in California
EFF: Feds plan to put 52 MILLION FACES into recognition database
System would identify faces as part of biometrics collection
Ex-Tony Blair adviser is new top boss at UK spy-hive GCHQ
Robert Hannigan to replace Sir Iain Lobban in the autumn
prev story

Whitepapers

SANS - Survey on application security programs
In this whitepaper learn about the state of application security programs and practices of 488 surveyed respondents, and discover how mature and effective these programs are.
Combat fraud and increase customer satisfaction
Based on their experience using HP ArcSight Enterprise Security Manager for IT security operations, Finansbank moved to HP ArcSight ESM for fraud management.
The benefits of software based PBX
Why you should break free from your proprietary PBX and how to leverage your existing server hardware.
Top three mobile application threats
Learn about three of the top mobile application security threats facing businesses today and recommendations on how to mitigate the risk.
3 Big data security analytics techniques
Applying these Big Data security analytics techniques can help you make your business safer by detecting attacks early, before significant damage is done.