The “right to be let alone” is a privacy right derived predominately from property rights. As time went on, these privacy rights expanded to include intangible property rights borrowing aspects of law from libel and slander, nuisance, and intellectual property. However in 1890, well before the availability of cell phone cameras, spy technology, and portable electronics devices, Samuel Warren and Louis Brandeis predicted a decline in these privacy rights.
In 2004, the Massachusetts legislature enacted its Peeping Tom Statute, An Act Relative to Unlawful Sexual Surveillance, to further protect privacy rights in light of modern technology. Despite this newly enacted law, the Massachusetts’ Supreme Judicial Court (“SJC”) declined to criminalize upskirt photos taken on public transportation because the conduct did not fall within the statute. In Commonwealth v. Robertson, the SJC held that secretly photographing under the skirts of female passengers on public transportation did not violate the statute’s prohibition against secretly photographing a nude or partially nude person. If such an invasion of privacy is not a recognized privacy right in Massachusetts, then what is and where do we draw the line?