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article image'Upskirting' Photography Creating Legal Controversy

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By Debra Myers     Nov 29, 2008 in Internet
A troubling wave of photography has hit the Internet in the last couple years, simply because everyone has either a cell phone that takes photos or has a digital camera. Photos of our body's private places are being taken then posted online.
Imagine a woman putting on a skirt or dress to go some place and while she's out, perhaps as she's standing waiting for a traffic light, someone slides a cell phone between her legs or under the hem of her skirt and snaps a photograph.
This is what's called "upskirting". There's also "downblousing", where the photos are taken down a woman's shirt.
A question that comes to mind: is there any legal recourse for these women who have essentially been violated? That's debatable, and it seems that it has lawmakers somewhat baffled over what to do.
Case in point: A 16-year old put on a dress to go shopping at her local Target, in Tulsa, Oklahoma. While she was shopping, a 34-year old man slid a camera under her skirt and took a picture. He was arrested, but then let go because the girl did not, as required by the state's Peeping Tom law, have "a right to a reasonable expectation of privacy," given the public location. Because of this ruling, Rep. Pam Peterson, R-Tulsa, introduced a bill which made it illegal for anyone to take pictures of someones private area while that person was in public. Since then, half (opens as pdf) of the US has enacted similar laws.
Sadly though, there aren't many legal remedies for this. It amounts to the fact that the laws have not caught up with today's technologies which has created a type of Wild West online, a frontier of rogue pornographers from all over the world. However, there is some technology that has caught up with this craziness. In Japan, cell phones make shutter sounds when a photo is taken, and even the iPhone 3G has an extra-loud anti-upskirt alarm.
It's unknown how many women's private parts which have been photographed without their knowing ends up online. There is one website where cell phone users can upload photos directly to the site called PhoneBin (warning: explicit photos). Go to Flickr type in 'upskirt' and there are 36,329 results (must be signed on and with 'safe-search' off). Similar results can be found at Fotki and Photobucket, as well.
The next issue is whether this qualifies as pornography. It seems that it is. A professor of political science at University of Massachusetts Lowell, Susan Gallagher said, "One of the tricks in pornography is that the target is unaware, because then you have power."
Upskirting is something that presents an easier challenge to the photographer, in that he doesn't have to confront the woman. In ways, it can be inferred that this gives the photographer a greater satisfaction because it is done on the sly.
From the article:
That we are using technology in this way is hardly anything new. "Almost immediately upon the invention of amateur photography there was the detective camera," said professor Gallagher. It could be concealed in your hat or tie, and "the idea of being able to record things without anyone knowing was a craze," she says. The development of technology, and its accessibility, however, is changing our culture: Not only are spy cams available on the cheap, but cameras are now a standard feature on cellphones. The federal Video Voyeurism Prevention Act of 2004 was enacted specifically in response to these high-tech developments, and outlaws virtual peeping that takes place "under circumstances in which the individual has a reasonable expectation of privacy."
The flip-side of this is that some women are getting even in their own ways. These women photograph men who harass them in public then upload the photos to a website called HollaBack NYC. The site encourages women to take quick cellphone photos of their harassers and send them in to the site for publication, along with their story about being groped on the subway, yelled at on the street or photographed by a stranger in a sexualized way.
Women are becoming more empowered to defend themselves in a non-violent way against these invasions. In August, a woman took a picture of the man who was upskirting her, which she then sent to the police. The man was apprehended and now is facing charges of attempted sexual abuse, harassment and unlawful surveillance.
We're beginning to see a change of what constitutes private and public. There are plenty of legal issues surrounding these issues, and it may be some time yet before the laws are clearly defined. Gallagher said, "The conventions that guide what is and is not a violation are currently under construction." But, she adds, "Privacy is based on an expectation and, in general, people don't have an expectation of privacy in public."
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