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It's Still Not a Crime to Take Upskirt Photos in Most of America

Smartphones have made it easy for creeps to take sneaky photos of women in public places and then upload those pictures online without their knowledge—and it's all perfectly legal, at least for now.

A staged upskirt photo, by Flickr user Dave Gingrich

Earlier this month in New York City, a woman named Melissa rode up an escalator from the subway on her usual route to work. She felt what she thought was a draft, then heard screams. Turning around, she saw a man was running down the up escalator. A woman approached. That man, the woman said, had just lifted up Melissa's skirt and taken pictures.

The police haven't caught the upskirt photographer, though Melissa started a website to chronicle her experience following the crime and said she will post an update should he be caught. But while New York has a history of punishing those caught taking upskirt pictures, plenty of states do not.

Take Oregon, where a 13-year-old girl was approached in Target by 61-year-old Patrick Buono. Buono crouched next to the girl and stealthily snapped photos up her skirt. The minor didn't notice, but another shopper did. Buono was arrested. But when he appeared in court in February, he was acquitted on all charges.

While the judge presiding over Buono's case found the act to be "lewd" and "appalling," he said that unfortunately, as Oregon law is written, nothing actually prohibits what happened in that Target store.

Similarly, two different Texas courts threw out a law targeting improper photography, an umbrella term that covered upskirt and other photos meant to provide sexual gratification, leaving no law to address upskirts in the state since last year.

Holly Kearl, an adjunct professor of women's studies at George Mason University in Virginia and author of two books about sexual harassment, said that many state laws haven't caught up with technology, and that it often takes someone being acquitted for a crime before politicians are even aware laws aren't adequate.

"One of the biggest weakness with many voyeurism laws is that they don't include public spaces as places that people have the right to privacy," she said. "Places like locker rooms or bathrooms are protected, but places like subways and parks often aren't."

Kearl, who also founded the nonprofit organization Stop Street Harassment, compiled a list of state laws addressing all forms of sexual harassment in 2013. She found that not all police departments have kept up with advances in technology, which she said could impact efforts to address crimes like upskirt photography.

"There is a big range in how technologically advanced departments were," Kearl said. "That comes into play."

And while Congress passed the Video Voyeurism Protection Act of 2004, that law only applies to federally owned property, places where a small percentage of the population actually spends time.

"It's not a crime for photographers to take pictures of what's publicly visible in public places and then distribute those photographs." –Eugene Volokh

For all the holes in some state laws, many do have legislation in place to prosecute those who take upskirts and similar photography, such as North Carolina, where a man was recently sentenced to three years probation for taking photos up girls' dresses at church.

But many such photos and videos don't stay on the devices that capture them; they are instead put online, where women who are unaware they have been photographed—and haven't given consent for the use their images—drive web traffic and revenue through advertising and membership fees.

A quick Google search will show that there is no shortage of voyeuristic content online, be it illegal upskirt photos or images of women in public (what is commonly referred to as a "creepshot"). And as LAPD Commander Andrew Smith explained, the latter, in most cases, is perfectly legal.

Smith said that when in public, people may record others with or without consent, a point reaffirmed by Eugene Volokh, the Gary T. Schwartz Professor of Law at University of California Los Angeles (UCLA), who has written extensively on First Amendment issues, including the right to take photographs.

"It's not a crime for photographers to take pictures of what's publicly visible in public places and then distribute those photographs," he said.

Websites that host such content are not usually breaking any laws, according to Volokh, and women who would find themselves on such websites often have little recourse.

Should a woman see herself being upskirted or recorded using hidden cameras, she could contact law enforcement and ask them to investigate. But as Volokh explained, that wouldn't be easy; federal law makes most websites immune from facing charges related to content uploaded by its users.

"If internet service providers and website operators were held liable for what their users posted, they wouldn't allow users to post things or would take them down whenever there's threatened litigation," he said, suggesting that the law enables greater exchange of ideas and communications online.

The best case scenario from a victim's standpoint would be law enforcement subpoenaing the service provider to track down the poster, and from there finding and prosecuting the photographer.

Further complicating the issue, many websites are hosted in other countries, so pursuing charges or lawsuits would require either extradition or the cooperation of a foreign nation, both of which can be rather tricky.

"People are prosecuted for things they post online, it's just not easy to do," Volokh said.

It is possible that websites making advertising and membership revenue could be sued for violating a woman's right of publicity, which is generally understood as the right to stop someone else from using any aspect of your identity in merchandising or advertising, Volokh said.

Related: VICE News reports on another legal gray area—revenge porn.

Though many websites subsist in legal gray zones, some large sites have taken it upon themselves to self-censor user posts, according to Soraya Chemaly, the executive director of the Women's Media Center Speech Project and a women's rights advocate.

She pointed to changes Facebook has made, such as choosing to take down pages with names like "12 Year Old Slut Memes"—which featured photos of young girls with explicit and crude captions—as well as Reddit's removal of its creepshot subreddit as progress. (It's worth nothing that a subreddit that claims to be a critique of fashion hosts content that is at least a little similar to the stuff on the old creepshot page.)

"Non-consensual photography is a big deal, and we need to make sure that companies appreciate how big a deal it is to us in terms of victim advocacy," said Chemaly, who organized the Safety and Free Speech Coalition, which works to end online harassment in various forms. "There is a greater appreciation for the harm that can be done by non-consensual photography."

Screenshot from reddit.com/r/upskirt

As non-government organizations address the proliferation of voyeuristic content online, many states have begun to change laws to ensure actions like upskirt photography are in fact illegal. In Texas, Senate Bill 1317, which would address the issues in the law that got struck down, has been passed by the State Senate and awaits approval from the House, according to Texas State Senator Jose Menendez, the San Antonio Democrat who authored the bill.

"It wasn't too long ago when most people weren't walking around with smartphones that have high definition cameras," Menendez said. "People have certain expectations of privacy that should be normal... we have to use technology in the best ways to both protect and serve our communities."

In Massachusetts, legislators hastily passed a bill outlawing upskirt photography last year after a judge on the State Supreme Judicial Court ruled there was no such law in effect. And Kearl said that through her capacity working with the OpEd Project, which aims to increase underrepresented populations in commentary forums such as editorial pieces in newspapers, legislators have reached out to her and asked what might be done to improve their own states' voyeurism laws.

Other organizations, such as the Cyber Civil Rights Initiative, aim to help women who have been victimized by illegal voyeuristic photography and other online harassment, like revenge porn.

Kearl said that while laws concerning voyeuristic photography become stronger, most would benefit from additional punishments for those who upload those images to the internet, something few laws currently address. And, as depressing as it might sound, we might not see any improvements to the law until more high-profile cases make upskirt photography impossible to ignore.

"This isn't so common that it's happening to someone every day," Kearl said. "Until it is more prevalent, it might not gain traction or become a priority."

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