The responsible, privacy-respecting part of us thinks it’s reprehensible that a Virginia man caught secretly filming teenagers at a local mall received a mere ten day prison [sic: jail] sentence thanks to a loophole in most states’ “video voyeurism” laws: apparently it’s only illegal to photograph someone without their consent if it’s done in situations in which they have “a reasonable expectation of privacy”, such as dressing areas or locker rooms. The perverted part of us, however, is all “Cool! More upskirt photos!” So as you can see, we’re a little conflicted about the whole thing.For my part at least, the responsible, privacy respecting part, ultimately, has won out, and I'll be at the Texas Legislature next week on behalf of ACLU of Texas asking legislators to support new regulations on voyeurism and other abuses of government surveillance cameras. In doing so, I suspect my message will be less like Fleshbot's, and more like those articulated in this recent piece from the UK Guardian:
Victims of video voyeurism are often horrified to find out that what has happened to them isn't even illegal in most states.
``It was really frustrating and depressing,'' said Jolene Jang of Seattle, who was secretly filmed at a festival five years ago by a man who lowered his camera to shoot up her dress. `'I felt helpless.'"
The Internet has only exacerbated the problem. Type the words ``upskirt'' and ``downblouse'' into the search engine Google, and millions of Web sites pop up.
Lawmakers nationwide have begun to respond, reworking laws written before advancements in camera technology led to a boom in digital voyeurism.
Most states with video voyeurism laws prohibit unauthorized videotaping or photographing of people who are in private areas, such as dressing rooms, or in situations where they have ``a reasonable expectation of privacy.''
The description has been too broad for several state courts, which have ruled people do not have a reasonable expectation of privacy underneath their clothing when they're in public.
In 2003, state Sen. Jeff Wentworth added language to an otherwise agreed bill making all information about government surveillance cameras secret, including the location of cameras, policies restricting voyeurism or other misuse, who has access to surveillance data, what the information will be used for, how long it will be maintained, etc. In the wake of that ignominious legislation, some police agencies are keeping surveillance data secret from citizens, but sharing the information with private businesses and other entities.
Perhaps the Baron will correct me if I'm wrong, but the through-the-looking-glass logic that says one has no reasonable expectation of privacy against others looking up her skirt stems from the same set of legal reasoning that brought us the pathetic Caballes decision claiming use of drug sniffing dogs at a traffic stop isn't a search. A dog is an extension of the human senses, the logic goes, so the smell of marijuana from an enclosed trunk is in "plain view" if one uses a dog to enhance the sense of smell. Similarly, if a woman's privates are in plain view from some legally available vantagepoint, perhaps using a telephoto lens, anyone has the right to point a camera at them under the same legal logic.
If you're operating a government surveillance camera in Texas, thanks to Sen. Wentworth's legislation, you can legally do so without anyone knowing you're watching, or what you do with the tape.
That's the new reality behind the proliferation of surveillance cameras that nobody talks about. Under current Supreme Court interpretations of Americans' Fourth Amendment rights, there really are no limits on what can be filmed or how it can be used if it's arguably visible to the public somehow, someway.
For the Fourth Amendment to retain any relevance in the technology-dominated 21st century will require a complete overhaul of the old framework for protecting privacy, and new definitions for what constitutes legitimate government surveillance. Judges have failed to protect our Fourth Amendment rights, and by extension, many important privacy rights that Americans take for granted. It's now time to turn to the legislative process to bolster them again, first to the states.
Via TechLaw Advisor