“Porn in a flash”

That’s the title of this recent Salon article. Here’s the first paragraph:

On a warm summer day two years ago, a 16-year-old girl put on a skirt and headed to the SuperTarget in her hometown of Tulsa, Okla. As she shopped the air-conditioned aisles, a man knelt behind her, carefully slid a camera in between her bare legs and snapped a photo of her underwear. Police arrested the 34-year-old man, but the charges were ultimately dropped on the grounds that 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. In non-legalese: Wear a skirt in public, and you might just get a camera in the crotch.

The article quotes Feminist Law Prof Anita Allen for the proposition that: “There are not many practical, legal remedies available to people who find themselves the victim” of up-skirt and down-blouse photography.   We do not have laws that effectively enforce normative personal boundaries largely as a consequence of First Amendment absolutism, which is so often driven by the desires of men to use women’s bodies any way they like.   The article notes the existence of   ‘‘Video Voyeurism Prevention Act of 2004” which states:

§ 1801. Video voyeurism
(a) Whoever, in the special maritime and territorial jurisdiction of the United States, has the intent to capture an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both.
(b) In this section:
(1) the term ‘capture’, with respect to an image, means to videotape, photograph, film, record by any means, or broadcast;
(2) the term ‘broadcast’ means to electronically transmit a visual image with the intent that it be viewed by a person or persons;
(3) the term ‘a private area of the individual’ means the naked or undergarment clad genitals, pubic area, buttocks, or female breast of that individual;
(4) the term ‘female breast’ means any portion of the female breast below the top of the areola; and
(5) the term ‘under circumstances in which that individual has a reasonable expectation of privacy’ means:
(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the individual was being captured; or
(B) circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place.
(c) This section does not prohibit any lawful law enforcement, correctional, or intelligence activity.

This sounds promising, but I can’t find evidence that a single person has been convicted of this outside of the context in which a child has been the victim, where it was one of a number of criminal charges including child pornography. And there are only a handful of those.

An article here purports to be “A Legal Primer” on the Act which concludes with this pep talk about seeking prosecution: “This one’s a crime. If you’ve been a victim, don’t shrink away into a corner, helpless and afraid. Step up, and seek the justice you deserve. It’s time to heal.” But when I pulled it up, it was accompanied by Google Ads for “peeping Tom” videos. So much for justice and healing. And of course application of the law is limited to instances in which a person has a “reasonable expectation of privacy” that a court will recognize. A number of law profs recently asserted that Judge Alex Kozinski had a right to expect that distribution of his web based pornography collection would stay limited to friends and family. But what about the rights of the people in the pornography Kozinski was collecting and sharing, who many not have been there voluntarily and/or have known they were being filmed? The Video Voyeurism Prevent Act refers only to capturing invasive images, not distributing them.

Amanda Marcotte discussed the Salon article last week at Pandagon. The appended comments thread is a mixed bag, as you might expect.

–Ann   Bartow