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Article posted Mar 11 2014, 4:11 AM Category: Big Brother/Orwellian Source: Techdirt Print

Legislators Rush To Patch Hole In 'Secret Photography' Law; 'Succeed' In Making It Make It Much, Much Worse

by Tim Cushing

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.

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.
Here's what's being inserted into the state's law governing "Photographing, videotaping or electronically surveilling partially nude or nude person(s):"
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 2˝ years or by a fine of not more than $5,000, or by both fine and imprisonment.

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 2˝ 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.
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.

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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