Peeping Toms Can Legally Take Photos up Women’s Skirts

Hey ladies, you know that creepy guy who tries to peek up your skirt ? Well it’s now legal for him to take a photo of you as well.

upskirt photos legalOne such creep, Christopher Hunt Cleveland, was arrested last June at the Lincoln Memorial on two counts of attempted voyeurism. Park police were suspicious of Cleveland when they spotted him taking photos of women on the steps above him rather than the giant statute of the bearded man. When police searched Cleveland’s camera and car, they found several hundred photos of women’s “private parts.”

At this point, most would expect a plea bargain if not an outright conviction. Unfortunately for decent people, Cleveland’s lawyer convinced Judge Juliet McKenna to suppress the evidence. Judge McKenna ruled that Cleveland’s photographs could not be used as evidence against him because “there is no evidence Mr. Cleveland positioned his camera in any way or employed photographic techniques or illumination, so as to capture images that were not already on public display.” In other words, the photographs were inadmissible as evidence because somehow the women’s crotches were already visible to the naked eye. Score one for the perverts.

Halfway across the country, the Texas Court of Criminal Appeals came to a similar, although slightly different, conclusion. Ronald Thompson was arrested in 2011 after he was caught taking underwater pictures of children in swimsuits. Although police couldn’t charge him with child pornography (the children were clothed), they did try to convict him under a statute which prohibited improper photography or visual recording acquired in public for sexual gratification.

In an 8-1 decision, the Court ruled that the law banning improper photography for sexual gratification violated the free speech clause of the Constitution. The Court agreed that the law was trying to protect citizens from dirty sexual thoughts, but regulation of thoughts is exactly what the First Amendment is designed to protect against.

Is It Always the Woman’s Fault?

Although the two cases and the outcomes were similar, the two courts took two different paths to arrive at these disturbing results. Internet commentators have condemned both rulings as cases that destroy women’s privacy. The outrage is understandable, but criminal prosecution isn’t the route society should take to stop this kind of behavior.

The D.C. Court ruled that the voyeur’s photos were not evidence of a violation of the law because the pictures were not depictions of anything illegal. Judge McKenna didn’t rule that women have no privacy, but that their privacy had not been violated. Indeed, it would be odd if the judge had ruled that women have no privacy because Judge McKenna is only a trial level judge without the authority to make that kind of ruling. Moreover, Judge McKenna is a women; it’s hard to argue that “male privilege” was a factor when the decision comes from a judge who might one day be on the wrong end of her own ruling.

The Texas case is a different beast altogether. Unlike Cleveland, Thompson was already guilty of violating a law. The Appeals Court overturned the law his conviction was built on because the law itself violated free speech. The free speech argument is particularly clever because it subtly shifts the focus of the case from the women’s privacy to the defendant’s right to express himself. In D.C., women’s privacy wasn’t violated. In Texas, women’s privacy was a secondary concern.

What Now?

If criminal prosecution isn’t the answer, what is? Free speech only limits government action. If you feel your privacy has been violated, you’re free to bring a lawsuit yourself. Such a lawsuit could produce a court order to make the pervert stop. The problem is that the camera guy would have to take pictures of the same woman repeatedly for her to bring suit, and voyeurs like Cleveland target different women every day.

On the other hand, if someone like Thompson is taking pictures at a private facility like a water park, the business itself can ban the pedophile from entering. If someone is taking pictures of you or you see someone taking pictures at a restaurant or private park, you should definitely complain to management and/or the owners.

 

How Wellness Programs Might Result in Employment Discrimination Lawsuits

Employers beware: the EEOC is bringing lawsuits against businesses that use wellness programs to discriminate against disabled employees. The EEOC claims that employers are using wellness programs to subject employees to medical tests unrelated to job performance in an effort to discriminate against disabled employees.

wellness programsIn August 2014, the EEOC filed a suit against Orion Energy Systems for discriminating against Wendy Schobert. The EEOC alleges that Orion shifted premium costs to Schobert after Schobert refused to participate in Orion’s wellness program. When Schobert complained, Orion fired her. Earlier this month, the EEOC filed a second wellness program lawsuit against Flambeau, Inc. The EEOC alleges that Flambeau violated the Americans with Disability Act (ADA) by cancelling employee Dale Arnold’s medical insurance after he refused to complete biometric tests and health risk assessments.

Due to the popularity of wellness programs, the EEOC is expected to file more wellness program suits in the near future. Kaiser Family Foundation reports that about 94% of businesses with over 200 workers and 63% of smaller employers offer wellness programs. A RAND Employer Survey shows that 80% of employers with wellness programs screen their employees for health risks for program planning purposes.

Ironically, the federal government is partly responsible for the recent rise of wellness programs. The Affordable Care Act (ACA), or Obamacare, offers 30% to 50% tax credits to employers who get their employees to meet health goals. Many employers believe the EEOC’s recent lawsuits constituted a bait and switch by the federal government: Obamacare incentives them to create these wellness programs for their employees, but then the EEOC sues the employers for implementing wellness programs in a manner that saves employers on insurance costs.

Doing the Right Thing without Being Punished for It

Health employees are obviously a good thing. The employee lives longer, the employer doesn’t have to change employees as often, and everyone saves money when people don’t need medical attention. The question becomes: how does an employer get ACA tax credits without triggering an ADA lawsuit?

First, an employer cannot defend against an EEOC lawsuit by claiming that the employer had to comply with the ACA. The ACA’s tax credits are completely voluntary. Employers aren’t mandated to create wellness programs. If an employer is slapped with a lawsuit after implementing a wellness program, the employer can’t argue that the employer was entrapped because the ACA is voluntary while the ADA is not.

Okay, so employers can’t argue that they can’t comply with both laws. Employers should probably avoid creating wellness programs that will result in a discrimination lawsuit. Let’s examine what Flambeau and Orion Energy System did wrong.

Flambeau and Orion both attempted to subject their employees to unwanted medical tests. An employer might want these tests to see what kind of program they need and to see how expensive their insurance will be. The problem is that the ADA only permits medical tests on employees if the tests are related to work performance. Insurance coverage and employee health are typically not work related. Employers cannot, and should not, compel employees to take medical exams.

In the EEOC’s collective minds, shifting medical insurance costs from the employer to the employee violates the ADA’s rule on medical tests. Raising costs on an employee who refuses to undergo an exam is viewed as employee retaliation because the employer is adversely affecting an employee who stands up for an ADA right.

If an employer decides to create a wellness program, the employer should make the program completely voluntary. The employer should avoid forcing employees to pay the premiums if the employees refuse to undergo a test. It is likely that health insurance might be higher, so the employer must consider the costs of a possible EEOC lawsuit against higher insurance if the employer implements a wellness program and an employee refuses to comply with medical exams. Obamacare might want employers to promote good health among employees, but no good deed goes unpunished.

Can a No Trespassing Sign Keep Police Away?

Can No Trespassing Signs Prevent the Police from Entering Your Property for a Search and Seizure?

There are many misconceptions about a person’s right to be free of unreasonable search and seizures, especially when it concerns searches of private residences.

Can a No Trespassing Sign Keep the Cops Away?One common mistaken belief is that no-trespassing signs will keep the police off private property if they don’t have a warrant. Similarly, it is also a common belief that even if the police have a warrant, they must knock before entering a home or even announce themselves as the police. Surprisingly, none of these actions by the police are covered under the protections of the 4th amendment.

So What Does the 4th Amendment Protect Against?

The 4th amendment’s protection against search and seizure is the bedrock of all law concerning the search and seizure of a citizen’s person or property. It was the unfettered discretion and abuse of the police power that led to 4th amendment protection. It is important to be familiar with the exact phrasing, in order to appreciate the limitations of the police’s power to enter a home or search one’s property. The 4th amendment states that:

“the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

However, over the last century, it has been the job of state and federal courts to interpret these words and create exceptions. As the challenges to searches make their way through the courts, such as the police entering property despite the presence of no-trespassing signs, the courts consistently rule against the suspect. Below is more explanation to this complicated area of law.

What Can Keep the Police from Searching My Property?

The law states that there is an intrinsic right of people to enjoy an “expectation of privacy.” This means that, generally speaking, the police are not permitted to enter one’s home without a warrant. If they have a proper warrant there is very little one can do to challenge a search.

When it comes to merely entering a person’s property to speak with a suspect, the courts have recently ruled that the police may enter without a warrant. The reasoning is that the general public has an implied license to knock on a door without actually entering and, therefore, the police can as well. Unfortunately, a no trespassing sign is not enough to revoke the right. However, there have been a few successful challenges to the “implied right” to enter the property. The suspect may be able to keep their right to privacy to keep the police from walking on the property at all by:

  • locked gate
  • call box or a sign with a telephone number directing the visitor to police to call first
  • Guard dogs if there is a sign announcing they are present

Finally, the police can actually enter a home or property without a warrant, if certain conditions exist. Exceptions to the 4th amendments warrant requirement include:

  • Open Fields Doctrine – any open or undeveloped property that is not intimately used for dwelling (including curtilage.) An example would be the suspicion that the suspect is growing marijuana in a wooded area. They can enter the area without a warrant.
  • Abandoned Propertywhen the owner does not maintain possession of the property
  • Consent – when the owner or person in possession of the property voluntarily gives their consent. The police do not need to inform the owner of this right. Also, recently the Supreme Court ruled that if a person is arrested and refuses to give their consent, they can ignore that consent and search if the remaining occupant gives consent.
  • Exigent Circumstances – immediate action is necessary. The time it will take to obtain a warrant could lead to the evidence will be destroyed, death or escape.
  • Plain View – the police can seize any item they have probable cause to believe is associated with criminal activity that he sees in plain view. This item can be seized even if it is not named in the warrant and will likely be added to the suspect’s charges.

Do I Need Legal Advice?

If your home has been searched and you feel that your expectation of privacy has been violated, you should immediately contact an experienced criminal law attorney. Even if the police try to use one of the exceptions to the requirement of valid warrant, an attorney will help ensure that you put forth the best defense possible.

Artists vs. Online Retailers: The reality of online copyright infringement

The term “sharing” has become a normal part of our 21st century lives, allowing us to engage with people around the world. By sharing, small time artists can promote their works on deviantART, Instagram, and Tumblr. Artists can even earn a living by selling their works on e-commerce sites like RedBubble, Etsy, Teefury, or Society6.

800px-UrbanOutfittersUnfortunately, being able to share your content with the world is a double-edged sword. As an artist you get to create, exhibit, and profit from your labor of love, but this also means your work can easily be stolen, reproduced, and sold without your knowledge.

Copyright protection laws give a copyright holder the right of reproduction and to create derivative works. A reproduction right means the copyright owner is the only one that can make copies of the original work. Derivative works are adaptations based on the original copyrighted work (e.g. a movie can be a derivative work of a book).

Independent online artists will often create an image, design, or comic and they usually reproduce their images on products like shirts, postcards, bags, phone cases, or other products. Derivative works, in this context, are usually merchandise created for other copyrightable works like web comic series.

The right of reproduction is the most infringed upon right for artists. Usually, an artist will upload an image and another person will take it and reprint that image on posters or tee shirts. This problem is common, even on sites like Etsy.

Although most online retail websites, including Etsy, have copyright infringement policies, enforcement and getting results can be difficult for artists. Common problems are:

  • The infringing party is in another country.
  • The websites themselves fail to take down the infringing products or images.

Besides having another person steal your work, some artists even fall victim to large retail stores like Urban Outfitters. Urban Outfitters has been accused, on multiple occasions, for copyright infringement and some artists accept this as part of the norm.

So what is an artist to do when engaging with online retail stores? Refuse to use these sites? Ignore the problem altogether?

Artists and designers take copyright infringement seriously and end up policing their own communities. Often, they will notify each other about the infringing party or will take an active role and reverse search their own images.

Reverse searching an image allows artists to see where their copyrighted works are being used on the web. Popular search engines are:

This may not be the ideal for independent online artists, but it’s the most proactive approach when dealing with infringers. The best thing to do is to know the copyright policies on whatever website you use to promote your work, and actively reverse search your images to stop copyright infringers from profiting off your work.

Should Islamic Laws Be Allowed in US Courts?

Sharia Law’s Impact on the United States

A few years ago, voters were outraged when they heard that a judge had denied a woman a protective order after her husband had raped her because the husband was a Muslim who claimed that marital rape was legal under Islamic, or Sharia law. The decision was overturned on appeal, but anti-Sharia laws have popped up over the country since that case.

Sharia Islam Law In AmericaConflicts between Sharia law and American law largely arise in family law, typically when couples from countries that recognize Sharia law migrant to the United States. These couples file for divorce and will argue over domestic violence and/or property distribution. One of the spouses, usually the husband, will use belief in Islam as a justification for a legal conclusion that favors the spouse.

Alternatively, that same spouse, usually the husband, will argue that the prenuptial agreement signed in the original country was recognized under Sharia law, and the agreement should thus be recognized in the United States.

Sharia law also comes up in contract disputes and religious arbitrations involving Muslims.

Why We Should Discuss This Issue

Although conflicts between Sharia law and American law have existed since the 1970s, if not earlier, the idea of American courts applying Sharia law didn’t become explosive until the September 11 attacks. Seven states, Arizona, Kansas, Louisiana, North Carolina, Oklahoma, South Dakota and Tennessee, have enacted anti-Sharia laws. Alabama will vote on the issue this November.

Anti-Sharia laws have not gone unopposed. Oklahoma’s constitution amendment banning Sharia law was ruled unconstitutional because it was considered discriminatory. Missouri’s anti-Sharia bill was vetoed by Missouri’s governor because it would make international adoptions too difficult.

Many legal experts have dismissed the efforts to ban Sharia law as solutions in search of a problem. Ironically, they are making the same mistake as the hotheads who enact these anti-Sharia laws: they are dismissing the issue without giving the matter much thought. The issues with Sharia law are small, but we should examine rather than trivialize such cases. My cursory research into Sharia law in the United States has drawn me to these observations:

  1. Family cases involving Sharia law are limited to the facts. It would be difficult for Sharia law to “creep” into American case law because most of the cases involving Sharia law are distinguishable based on facts which don’t often arise outside of the Islamic community. In cases where American judges acted consistently with Sharia law, the parties were citizens from Pakistan, India, Israel, or other countries which use Sharia law. Our judges aren’t allowing Sharia law to supersede American law. Instead, our judges are recognizing the legitimacy of courts outside of the United States when the nationals of those other countries are involved.
  2. Cases involving Sharia law would reach the same outcome even if Islam wasn’t involved. In some cases, there is no conflict between Sharia law and our law. For instance, Sharia law demands that Islamic courts apply a “child’s best interest” standard when deciding child custody. Coincidentally, our legal system uses the same standard. Obviously, cultures will differ on what exactly is in a child’s best interests. Islamic courts believe that children who grow up in an Islamic society are better off than children who do not. That belief seems wrong, but let’s not forget that our own courts used to overvalue Christianity when they awarded the custody of Native American children to white parents. In other cases, our judges have decided to stay out of the case. For example, our judges cannot decide employment disputes between Imams and mosques. That is an internal religious dispute and our federal constitution forbids courts from meddling with the free exercise of religion. This would be true even if the conflict involved a minister and a church, so in these few cases there would be no difference in the outcome.

The Threat Which Is Not Threatening

Currently, these anti-Sharia laws are naïve experiments. Laws which specifically target Sharia specifically targets Muslims and are thus unconstitutional. Some states tried to “fix” that problem by making them broad. Instead of banning Sharia law, states like Oklahoma are banning “foreign law.” Alabama has taken this a step further and is prohibiting the application of laws which conflict with Alabama’s own policies.

Making the ant-Sharia laws broader only creates more problems. Banning foreign laws makes it next to impossible to attract international contracts since companies in other countries won’t do business if they don’t think their contracts will be honored. Alabama’s proposed law is even more extreme. I can’t see states like Alabama ignoring the United States Supreme Court merely because the Supreme Court decides cases contrary to Alabama law.

So if states are worried that their courts will decide cases which legitimize wife beating or marital rape based on Islam, what can these states do? Instead of having states enact unconstitutional and overbroad anti-Sharia laws, Congress should strengthen our refugee laws. Most of the women being victimized by Sharia law came to the United States to escape unjust marital arrangements and abusive husbands. If we make it easier for women from Islamic countries to obtain political refugee status, we would do more good than the symbolic, but empty, anti-Sharia laws that states are currently trying to enact.