'Upskirt' Photos are Not Illegal, Mass. High Court Rules - CourtSide
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'Upskirt' Photos are Not Illegal, Mass. High Court Rules

It is not illegal to secretly photograph underneath a person’s clothing (known as “upskirting”), Massachusetts’ highest court has ruled in privacy decision that may prompt lawmakers to update state law.

The state’s highest court ruled (see decision below) that a man who took cellphone photos up the skirts of women on the Boston subway did not violate state law because the women were neither nude nor partially nude.

“A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is ‘partially nude,’ no matter what is or is not underneath the skirt by way of underwear or other clothing,” wrote Justice Margot Botsford of the state Supreme Judicial Court.

The high court overruled a lower court decision that upheld charges against Michael Robertson, who was arrested in August 2010 by transit police who set up a sting after getting reports that he was using his cellphone to take photos and video up female riders’ skirts and dresses.

Robertson had argued that it was his constitutional right to take the photos. Existing so-called Peeping Tom laws in Massachusettsprotect people from being photographed in dressing rooms and bathrooms when nude or partially nude. But the law does not protect clothed people in public areas, the court said.

At least one prosecutor has urged state lawmakers to act.

“Every person, male or female, has a right to privacy beneath his or her own clothing,” Suffolk County District Attorney Daniel Conley said in a statement Wednesday. “If the statute as written doesn’t protect that privacy, then I’m urging the Legislature to act rapidly and adjust it so it does.”