Upskirt Photos and Revenge Porn Share Barely Legal Gray Area

The similarities between "upskirt" photos and "revenge porn" are undeniable. Upskirt photos, taken underneath women’s clothing without permission, are usually posted on websites and forums devoted to this odd mixture of porn and sexual harassment. Revenge porn involves nude photos (taken with permission or not) ending up in public view, without the consent of the subject to publish them.

The laws that would criminalize both acts? Very few of those exist. For now.

Upskirt shots are rampant online. They also might be totally legal — whether or not the women in the pictures knew they were being photographed.

However, the branches of legislation likely to be called upon against the photos — unlawful surveillance law, “peeping Tom” laws, and cyber harassment law — are so specific in their language, that both upskirting and revenge porn cases frequently end up in a gray area that nothing covers.

This makes it easy for people who post revenge porn and upskirt photos to dodge laws that, by reasonable assumption, should be used to charged them.

That’s why a spate of laws are set to be re-drafted this year. Only three states — New Jersey, Alaska, and California — currently criminalize revenge porn. However, law professor and cyber harassment expert Danielle Citron told VICE News that 17 states are considering following suit. Some, like Maryland, have already passed bills now waiting for approval.

On Wednesday, a State Supreme Court in Massachusetts ruled that surreptitious upskirt photos, commonly shot with cell phones on subways and in other crowded locations, didn’t really break existing state laws. The public outcry, which could be heard from the next solar system over, resulted in a dizzying legislative effort. A rewritten bill banning the creepy shots passed in Senate with a 39-0 vote on Thursday night, and was signed into law by Governor Deval Patrick at 10:40 AM on Friday morning.

“There’s a reasonable expectation of privacy beneath your own clothes, that’s why you’re wearing them,” said Jake Wark of Boston’s Suffolk County District Attorney’s office. The law seemed clear enough; Wark pointed out that the Boston DA had even used it to convict “upskirt” photographers in numerous previous cases.

Because the law’s language was so specific, though, it left no space in which to apply it to new conditions that may not have existed when it was written.

Last year, similar laws were challenged repeatedly in state courts as women came forward to protest a growing trend of online “revenge porn.” Cases of people posting, sometimes selling, photos of their naked ex-girlfriends and ex-wives without their permission at first became entangled in an undertow of legal loopholes. Frequently, the issue was blurred by the fact that women had willingly posed for the photos but not given permission to, say, post them all over the Internet with a caption that listed their home address.

The most public face of revenge porn, Hunter Moore, was indicted last fall. One of the cases that finally put what Rolling Stone called “the most hated man on the Internet” away actually involved remotely hacking into the email account of Kayla Laws, a California resident whose mother fought for the legislation that led to Moore’s arrest.

Citron said that unlawful surveillance laws (like the faulty one addressed in this week’s Massachusetts ruling) have been on the rolls for decades in most states — but they are too often stuck in the pre-technology era in which they were drafted.

“State statutes require that the perpetrator trespass on private property or see the subject nude,” explained Citron. “This is a physical law. Even hacking into a computer wouldn’t count… They capture the problem of the 20th century, but they don’t capture today’s problems.”

So will buzz around the recent ruling force more states to pass legislation that covers both crimes? Outlawing both revenge porn and upskirt photos requires a sophisticated understanding of the era of DIY pornography and the variety of ways in which laws on these kinds of photos are applied.

Citron cited the case of Morgan Stanley trader John Kelly, who was charged with three counts of felony unlawful surveillance when it was discovered he was having sex with women and recording it. But his recordings were shared in password-protected files, like Dropbox. And Kelly’s case just happened to occur in New York, which has surveillance laws that are relatively open to interpretation when it comes to sexual offenses.

Specificity, then, is what ultimately allows perpetrators of crafty harassment crimes to escape prosecution.

Yes, revenge porn and upskirting are having a moment. But what’s next? As Wark says, “Legislation has never kept pace with technology.”

If lawmakers can’t keep pace with technology then they should make an informed effort to precede it. Or at least leave some interpretive wiggle room as an increasingly public culture, based on mass exposure, finds its boundaries.