Who knows what was on Michael Robertson’s mind when he got on the Green Line on the morning of August 11, 2010. Maybe he was just looking forward to, or dreading, another day at work. But along the way, Robertson, a 31-year-old lawyer from Andover, got a look at the exposed thighs of a woman sitting across from him. And he, allegedly, did something that most of us would not contemplate. He took out his cell phone, held it by his waist, and snapped a photo.
That evening, according to a witness who took her own photo of Robertson in the act, he tried to do it again. The following day police set up a sting operation, and Robertson was caught. He was charged in Boston Municipal Court under the state’s video voyeurism law.
The problem is that Robertson did not violate the law he was charged with breaking, or so he claims. And he has a strong case.
Robertson stands accused of what is popularly called “upskirting” — surreptitiously photographing the area under a woman’s skirt while she is in a public place, such as a trolley car. The Web is littered with such shots. Google’s image search turns up nearly five million hits, and that doesn’t include the material you’re likely to find in the “deep Web,” or in the private stashes of those who do not care to distribute their trophies.
Wherever the photos end up, they represent an obvious violation of social norms and human dignity.
Yet, as Robertson argues, Massachusetts’ peeping Tom laws do not ban upskirting, because they aren’t intended to protect clothed people in public. The law applies only to people who are “nude or partially nude” and in “such place and circumstance [where they] would have a reasonable expectation of privacy.” While the underside of a woman’s skirt is a location in which she could expect to maintain privacy — even on a train — the requirement that the victim be at least “partially nude” is Robertson’s saving grace. The law establishes, in precise anatomical detail, what counts as partial nudity, and Robertson’s alleged victims don’t appear to fit the bill.
When the Supreme Judicial Court heard oral argument in Robertson’s case on November 4, the justices seemed to agree, repeatedly wondering how the existing law could be construed to criminalize Robertson’s activity. The Court has not yet ruled, but its skepticism does not bode well for the state’s prosecution.
Unsurprisingly, the media jumped into the juicy case with little regard for its nuances. Several reports erroneously claimed that Robertson asserted a First Amendment right to take upskirt photos. In fact Robertson has never pressed such a claim. Rather, he argues that if he were convicted under the existing law, that law would be rendered unconstitutionally vague and overly broad, capable of sweeping into its purview works of art and journalism that actually are protected.
Because upskirting is not, as far as anyone knows, a Constitutional right, the state can criminalize it. Other states and the federal government have done so. Indeed, amendments to the peeping Tom law currently before the Massachusetts House and Senate would ban unwanted video and photographic surveillance of “intimate areas.” With these amendments in place, upskirting would unquestionably be illegal.
The amendments were initially proposed nearly three years ago but have since languished. And not because privacy law has trouble keeping up with technology. It does, as the Supreme Court has shown — for instance, in United States v. Jones (2012) the Court held that when police attach a GPS to a private car and monitor its movements, they trespass on private property and therefore need a search warrant. But the Court’s opinion relied on old-fashioned theories of search and trespass, avoiding the modern heart of the issue: that the cheap, infallible digital trace provided by GPS is fundamentally different from the information that can be obtained through human surveillance.
When it comes to upskirting, though, new technologies don’t create novel legal problems. That the practice appears to be lawful in Massachusetts is a function only of hesitation on Beacon Hill. With Robertson’s case in mind, the legislature may at last feel compelled to act.