Court rules cell phone upskirt pics are legal

A Massachusetts High Court declares that peeping tom pics are legal, because the women are not unclothed.

Michael Robertson was accused of holding his cell phone at waist height on the subway. CBS New York screenshot by Chris Matyszczyk/CNET

"May it please the court if I place a cell phone up this court's trouser leg and take a picture or two?"

These words might have been the temptation of many after hearing an interestingly thought-out decision in Massachusetts.

As The Associated Press reports, the highest court in Massachusetts decided that one of the lowest forms of behavior -- taking upskirt cell phone pictures -- was legal.

The reasoning might cause some to rend their clothing and toss it in the direction of the court. For Massachusetts' Supreme Judicial Court declared that as the women whose skirts were being spied up were not unclothed, the so-called Peeping Tom laws do not apply.

In essence, these laws protect those who are partially or entirely undressed, such as in changing rooms or the privacy of their own homes. Subway riders, on the other hand, are not.

The case it was considering was that of 31-year-old Michael Robertson, who was arrested in 2010 for riding the subway and taking these unseemly pictures with his cell phone.

The court's words included that the law "does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA."

Please complete this sentence: the law is an...

Of course, in the end this is what it comes down to. The Supreme Judicial Court did agree that such cowardly, perverted photography ought to be illegal. It simply couldn't or wouldn't interpret existing laws to cover that illegality.

Some might wonder whether the court tried hard enough. Indeed, the Boston Herald reports that the reaction of Massachusetts House Speaker Robert Leo was this: "The ruling of the Supreme Judicial Court is contrary to the spirit of the current law. The House will begin work on updating our statutes to conform with today's technology immediately."

Upskirt photos are surely just as much of an invasion as those surreptitiously taken in a changing room.

When the court heard his case in November last year, Robertson's female lawyer argued that it was her client's constitutional right to take upskirt photos.

As the local Eagle News reported at the time, lawyer Michelle Menken told the court: "If a clothed person reveals a body part whether it was intentional or unintentional, he or she can not expect privacy."

Another of her arguments was: "The use of a cell phone in public is not secret surveillance."

Ultimately, Menken's argument was that her client didn't make additional efforts to take the pictures. What he photographed, she argued, was "in plain sight."

She suggested that if the judges found against her client, there would be a First Amendment risk. 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."

I can find no evidence that Melken also offered the argument: "I'm just being a lawyer. Bite me."

I can also find no evidence that she wore trousers while she spoke.

 

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