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'Upskirt' photos legal in Mass., court rules. Not for long, critics say.

Mass. Supreme Judicial Court ruled Wednesday that, under existing state laws, taking so-called 'upskirt' photos in public is not illegal, prompting state lawmakers to promise updates to an outdated law.

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Melanie Stetson Freeman/海角大神/File
People photograph the State House in the Beacon Hill neighborhood, on February 20, 2013 in Boston, Massachusetts.

Massachusetts lawmakers, in an indignant moment, may take steps soon to outlaw the taking of so-called "upskirt" photos of people in public, after the state's highest court ruled unanimously on Wednesday that, under existing state laws, upskirting is legal.

Beacon Hill lawmakers and officials widely criticized the ruling after it was issued, and some talked of criminal penalties for offenders, in acknowledgment of how technology has empowered 鈥減eeping Toms.鈥

The Massachusetts Supreme Judicial Court, ruling on a Boston-based case in which a man took upskirt photos of female straphangers riding the subway, found that a Massachusetts law criminalizing the covert photographing of nude or partly nude people does not apply to 鈥渦pskirting,鈥 because the photographed women are wearing clothing.

Here are the facts of the case. Michael Robertson was arrested in August 2010 for taking cellphone videos and pictures up the skirts of two women riding on the MBTA鈥檚 Green Line, including a transit police decoy. He was charged with secretly photographing a partially nude person.

A Boston Municipal Court judge rejected Mr. Robertson鈥檚 request that the charge against him be dropped. But Robertson appealed, and the Supreme Judicial Court, finding in his favor, dismissed the charge.

"A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is no matter what is or is not underneath the skirt by way of underwear or other clothing," wrote Justice Margot Botsford, in the decision.

A law that criminalizes upskirting 鈥渋s eminently reasonable,鈥 she added. The current law, passed in 2004, 鈥渄oes not address it," she wrote.

The court also noted two proposed measures, introduced in January 2013 and still pending in the legislature, that would make upskirting illegal. Both measures 鈥渁ppear to attempt to address the upskirting conduct at issue here,鈥 Justice Botsford wrote.

This is not the first time that a court has found that existing laws do not apply to upskirting, a somewhat new problem made possible by technology that creates unprecedented opportunities for peeping Toms, whose tools were once little more sophisticated than keyholes and pulled-back blinds.

In some states, such rulings have prompted lawmakers to revise the laws, a kind of legal catch-up also seen in new legislation on "revenge porn," for example. In both Indiana and Washington, lawmakers reacted to court rulings that upskirters had to be let off, under current state laws, by approving new laws to make upskirting illegal. New York and Florida have also enacted laws explicitly criminalizing upskirt photos, as the court鈥檚 decision noted.

It appears that the Boston case could push Massachusetts lawmakers to update state laws.

鈥淓very person, male or female, has a ,鈥 Daniel Conley, district attorney for Suffolk County, said in a statement after the ruling. 鈥淚f the statute as written doesn鈥檛 protect that privacy, then I鈥檓 urging the legislature to act rapidly and adjust it so it does.

鈥淣o respectable citizen wants this situation to be allowed to continue,鈥 he said.

Massachusetts House Speaker Robert DeLeo also told reporters outside the State House that 鈥渢he House will to conform with today鈥檚 technology immediately.鈥 Senate President Therese Murray, meanwhile, said the 鈥淪enate will act swiftly鈥 to address the apparent gap in the law.

鈥淲e have fought too hard and too long for women鈥檚 rights to take the step backward that they did today,鈥 she said.聽

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