Much of the time in our current era of media, headlines are crafted in such a way that the actual story is far more benign than the title would lead you to believe. It’s linkbait, pure and simple, and I’m guilty of it myself at times. This story, however, is not one of those cases.

Massachusetts Supreme Judicial Court: Upskirt photos not illegal under state law

BOSTON — The Massachusetts Supreme Judicial Court ruled Wednesday that a law used to charge a Green Line rider with taking upskirt photos of women in 2010 did not apply in the case because the women did not have any expectation of privacy in a public place and they were not in a state of undress.

The SJC ruled in the case of Commonwealth vs. Michael Robertson that the state law that Robertson was charged with violating in two criminal complaints in 2010 does not actually make what he did a crime.

Robertson did not contest that he took upskirt photos of two women on the Green Line in December 2010, but did contest that, because the women were not nude or partially nude and in public, he did not violate state law as written.

At The Week, Meghan DeMaria seems rather depressed about the entire affair.

If you’re wearing Spanx, a thong, or other undergarments that could constitute being “partially nude” beneath your skirt, you’re entitled to legal protection, but women who favor granny panties are out of luck. Good to know.

One of the problems with the rather rapid evolution of technology when paired with the colonial process of passing and editing laws through an elected legislative body is that the former can frequently outpace the latter. Back when I lived in New Jersey – this would have been the early 90’s – there was a rather infamous case where this phenomenon briefly drew national attention. (I tried to search for a link to it, but it may be too old for Google.)

A landlord had gone and installed a fiber-optic line from his office into the bedroom of an apartment he rented out to several young ladies. He recorded their activities without their knowledge until through some turn of events he was found out. Police arrested him, confiscated his recording equipment and multiple videos of his current tenant. They had her as a witness and all of the damning material ready as evidence when they went to court. After filing a not guilty plea, the landlord’s attorney showed up for the court date and promptly moved for the charges to be dismissed. And they were.

The law under which they charged the landlord had been written back in the early part of the 20th century, and it banned the surreptitious recording of conversations, music, or any other audio tracks of another person in a private residence without their knowledge. But the legislation had been passed long before anyone had imagined the ability to record video. And being a fiber-optic line, the videos had no audio tract. The guy walked free.

This Massachusetts case isn’t quite as blatant, but there’s certainly an element of the same problem. They passed a law which only applied to “people in private when they are nude or partially nude.” Apparently the authors didn’t imagine a time when phones could be just as intrusive in the middle of a subway car. Of course, they’re going to get right on fixing this.

“We conclude that (the law), as written, as the defendant suggests, is concerned with proscribing Peeping Tom voyeurism of people who are completely or partially undressed and, in particular, such voyeurism enhanced by electronic devices. (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,” read the decision.

There’s a project for some of you state and local bloggers out there. Start a review of the existing, oldest laws and identify some of these same gaps and bring them to the attention of the legislature. Such issues will probably be most common in the original colony states on the east coast, but I’d bet there are a lot more of these waiting to be found out there.