Article Preview: Without a Bright-line on the Green Line

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?

In Without a Bright-line on the Green Line: How Commonwealth v. Robertson Failed to Criminalize Upskirt Photography, which will be featured in the New England Law Review’s Volume 50, Issue 1, Jeffrey Marvin argues that the SJC erroneously ruled that Robertson’s actions did not fall under § 105(b). The SJC interpreted § 105(b) to prohibit voyeurism by electronic device of those partially or completely undressed. However, Marvin argues that the SJC narrowly interpreted the statute and as a result minimized privacy rights the legislature intended to protect.

Canons of statutory interpretation dictate that where the plain language of the statute is clear and unambiguous, courts must interpret the statute as written. Marvin’s article analyzes the plain meaning of the statute and suggests a proper reading of the statute. On its face, § 105(b) criminalizes the conduct of the perpetrator and not the victim. Marvin argues that because the SJC considered the victim’s partial nudity, the victim’s conduct became determinative of whether or not Robertson’s conduct fell within the statute. The court’s line of reasoning is flawed because upskirting is an act involving two individuals. Yet, the SJC’s sole focus on the conduct of the victim changed the criminal act from upskirting to exposure.

The Robertson decision received wide criticism. Commentators attacked the SJC’s decision for protecting perverts, while others advocated for an amendment to modernize the Peeping Tom Statute to bring it in line with societal demands. After Robertson, the Massachusetts legislature amended § 105(b) to specifically prohibit upskirting with a provision criminalizing secret photography of “the sexual or other intimate parts of a person” irrespective of whether the person is clothed or not. This is a “must-read” Article that will appear in Volume 50, Issue 1 of the New England Law Review.

Contributing Editor: Tanya Dennis

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