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Lawmakers In Massachusetts Work To Undo Ruling Making ‘Upskirt’ Photos Legal

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BOSTON (CBSNewYork/AP) — Lawmakers in Massachusetts quickly acted Thursday to pass a bill banning people from taking “upskirt” photos in public, after the state Supreme Court there ruled this week that such photos are legal.

As CBS 2’s Kristine Johnson reported Wednesday, the ruling stemmed from a legal loophole, and lawmakers have since already acted to change the law and keep women safe.

MORE: Coverage From CBS Boston

The Massachusetts state House and Senate both passed a bill updating the legislature to explicitly ban “upskirting” in public, sending the bill to Gov. Deval Patrick’s desk to be signed into law, CBS Boston reported.

The bill includes punishments of imprisonment in the house of correction for up to two and a half years and/or a fine of up to $5,000, CBS Boston reported.

In several other states, including New York, upskirt photos are already banned under specific laws.

But in Massachusetts, the State Supreme Judicial Court on Wednesday dismissed charges against Michael Robertson of Andover, Mass., who was arrested in August 2010 by local Transit Police, CBS Boston reported.

Officers had set up a sting on the Boston Green Line trolley system after getting reports that Robertson was using his cellphone to take photos and video up female rider’s skirts and dresses, CBS Boston reported.

But Robertson defended what he said as a First Amendment right to take upskirt pictures of women in public.

His attorney, a woman, told the judge this past November that if a clothed person reveals a body part — whether it was intentional or unintentional — he or she cannot expect privacy, and that “Peeping Tom” laws cover bathrooms and dressing rooms but not public areas.

At the time, Hofstra Law School professor Leon Friedman called the case “ridiculous” and argued Robertson is not protected under law according to the Fourth Amendment.

“Do you have a reasonable expectation of privacy in your underwear or in the thighs of your body when you cover it with a skirt? And the answer is you do,” Friedman told CBS 2’s Alice Gainer last fall.

But thanks to a legal loophole in the Massachusetts Peeping Tom law, the state Supreme Court there ruled that Robertson did not break the law.

The Massachusetts law requires that the subject of such a photo must be “nude or partially nude,” among other requirements.

“So if you’re wearing underwear, it’s OK?” a woman said. “That’s disgusting.”

But the ruling even said even someone who is not wearing underwear is not partially nude, provided that they are wearing a skirt.

The Massachusetts decision said a woman on a trolley “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,” CBS Boston reported.

Prosecutors argued that a person has a right to privacy beneath his or her own clothes. But justices ruled that because the alleged incident occurred on a public trolley, there is not a reasonable expectation of privacy, CBS Boston reported.

They noted that while the prosecution’s “proposition is eminently reasonable,” the current writing of the law that Robertson was charged under does not cover that particular circumstance, CBS Boston reported.

But even the court believed the photos should actually be illegal.

Justices said: “A woman riding on a public trolley has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable.”

Nearly 1,300 people signed a petition to make upskirt photos illegal in Massachusetts.

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