Tag Archive for 'privacy violation'

Behind Texas Court’s Decision to Strike Down “Upskirt” Photography Ban

The recent Texas Court of Criminal Appeals ruling regarding “upskirt” photography – pictures taken covertly under women’s skirts in public and without their consent – has understandably drawn much outrage. The case has been widely described as ruling that it is legal to take these kinds of photos, which has generated a great deal of shock and anger.

texas court upskirt photo banThe court’s ruling did strike down a statute that would have outlawed this practice under the First Amendment’s Free Speech protection. However, a closer examination of the court’s decision and the statute in question demonstrates that this outcome was, more than anything, the result of extremely poor statutory drafting on the part of the legislature.

A law is unconstitutional under the First Amendment when it is overly broad. That is, even if the law aims to achieve a permissible purpose, if the language used encompasses substantially more conduct than intended, the law is unconstitutional.

The portion of Texas Penal Code Section 21.15 (the “improper photography or visual recording” statute) that was called into question was subsection (b)(1), which stated photographing or electronically recording a person is a crime if the photo or recording “is made without that person’s consent” and “made with the intent to arouse or gratify the sexual desire of any person.”

The State Attorney argued that the First Amendment did not apply because the statute did not target the “speech” (the photograph), but rather the “act” (the taking of the photograph). The State Attorney further argued that, even if the First Amendment did apply, the statute was limited by the consent requirement and, thus, not overly broad.

Under the State Attorney’s interpretation, if the photograph is of an area that is not exposed to the public, (such as a photograph taken up a woman’s skirt) the improper-photography statute criminalizes the behavior, if done with the requisite intent (to arouse or gratify sexual desire). However, if the photograph is of an area that was exposed to the public, (such as a photo of a woman wearing a swimsuit) the statute does not apply.

The State Attorney is bending over backwards to make this statute work, essentially asking the court to approve of an entirely different version of the statute than what is “on the books.” The argument that the act of photography (as opposed to the photo itself) is not a form of speech that invokes the First Amendment is nonsensical; and the State’s interpretation of the term “consent” is extremely broad.

The Defendant argued that, while the legislature has a legitimate interest in prohibiting “upskirt” photography, the statutory language used “fails to distinguish those situations from merely photographing a girl in a skirt walking down the street.” The court seemed to agree.

It is possible for a court to “save” an overly broad statute by utilizing a narrow interpretation. However, the Texas court felt that the “narrow interpretation” offered by the State Attorney – narrowing the statute, ironically, by using a broad definition of “consent” – was not possible in this case.

The court had previously construed “consent” as meaning “an actual or real agreement after thoughtful consideration,” and felt that the idea that a person consents to be photographed by merely appearing in a public place ran completely counter to this definition.

The court was concerned that imposing a definition of consent as broad as the one proposed by the State Attorney, when no such definition was provided in the statute, invaded the legislative domain and diminished the incentive for the legislature to draft narrowly tailored statutes in the first place. The court was also concerned that a very broad definition of “consent” might be a dangerous concept that, if utilized in this case, might be expanded to apply in other scenarios.

The court concluded by agreeing that a person being photographed in an area not exposed to the public, such as up a skirt, did violate the State’s legitimate interest in privacy, but pointed out that the statute in question was overly broad and did not even contain language addressing privacy concerns.

The court used the next subsection of the statute – Section 21.15(b)(2) – as an example of a provision narrowly tailored to address privacy interests: It is a crime to photograph or record a person in a bathroom or private dressing room. The court also offered some examples of ways that the legislature could have tailored the statute to make it less broad; such as requiring a person’s privacy interest to be invaded or prohibiting specific activities, such as “upskirt” photography.

These suggestions raise the question: Why did the legislature choose to focus on the sexual gratification of the perpetrator, rather than the privacy interest of the victim? What if the intent of the photography was not sexual gratification, but instead to mock or humiliate the victim? Should that victim be entitled to any less legal protection?

The court repeatedly refers to the statute as “protecting an individual from being the subject of someone else’s sexual desires,” stating that this is an unattainable goal. In fact, the statute was actually intended to protect individuals from dissemination of invasive photographs of their body parts by strangers. Clearly, the “sexual gratification” language in the statute confuses this purpose.

Thus, after a closer look, this case seems to illustrate the importance of a carefully drawn statute more than it does the ambivalence of the court towards privacy. It does not appear that the court is declaring “upskirt” photography legal or in any way condoning the behavior. The problem is that the legislature drafted a statute that was overly broad, while simultaneously failing to encompass situations in which personal privacy is invaded with non-sexual motives.

What is needed is a statute that encompass the entirety of the behavior the legislature is seeking to prevent, without also encompassing a wide variety of other behaviors.

Don’t Worry NSA, Google Has E-mail Surveillance Covered

It shouldn’t be surprising that Google monitors Gmail for child pornography. After all, this is the same company that scans e-mails and bombards uers with advertising for legal services. However, the scans of John Skillern’s Gmail will likely result in a lengthy prison sentence rather than annoying advertisements.

gmail surveillanceIn 2008, Google applied new software to its e-mail system. The software consists of a “database” of child abuse images (only data, no actual pictures!) which is compared to Gmail attachments. If there is a match, child protection agencies are alerted, who then send tips to local police.

The system is automatic, so Google employees aren’t involved in the process. Since Google’s e-mail system is the world’s largest web-based e-mail service, with about 425 million users worldwide, this system is one of the largest surveillance systems in human history.

A few weeks ago, Google’s new software led to the arrest of John Skillern. Skillern is a registered sex offender, convicted of sexually assaulting an eight year old boy in 1994. After Google scanned Skillern’s Gmail, police obtained a search warrant and allegedly found child pornography on his phone and tablet. The 41 year old Houston City restaurant cook was charged with one count of possession of child pornography and one count of the promotion of child pornography.

“Those Who Sacrifice Liberty for Security Deserve Neither”

Pedophiles who thought the “right to be forgotten” could shield their evil online are in for a rude awakening. There is no doubt that child pornography and the child abuse it promotes is profoundly wrong and people like Skillern deserve to rot in the deepest prison cells.

However, this type of surveillance is morally ambiguous at best and outright dangerous at worst. First, there’s the slippery slope argument. If Google can monitor private communications for child pornography, could they also monitor Gmail for drug use or criminal conspiracies? Can the software scan for politically sensitive issues like religion or terrorism? How about activists’ movements like Occupy or Tea Party? Surveillance always starts with good intentions. If the NSA has proven anything, it’s that employees of massive surveillance technology abuse it at the first opportunity.

Of course, slippery slopes are an easy argument, even if America’s legal system tends to ride slippery slopes all the way to crazy town. Google currently has little potential for employee abuse since Google’s system is automatic, with almost no human control. The software automatically compares data, not even actual photos, for a match. When Detective David Nettles said “I can’t see that photo, but Google can,” he was misleading reporters.

So what could go wrong when a computer system does all the surveillance? Ignoring the obvious Terminator reference, machines don’t understand context. Many child pornography laws require that the defendant have a certain state of mind, a criminal intent, for the defendant to be convicted. Suppose a defendant’s Gmail was hacked. Or a virus spread images of child pornography across random computers. Or if a child protection agency employee Gmailed a district attorney the photos as evidence. Google would pick out the transmissions, even though none of these cases would result in a conviction. Skillern looks like he possessed child pornography for the purpose of looking at and selling young children, but with 425 million users, there could easily be grey area cases.

Amazon Drone Delivery in 30 Minutes

In the 1980’s, Domino’s Pizza promised pizza delivery in 30 minutes or less. Although Domino’s eventually ended that promise, other companies have tried to emulate it. In the 21st century, companies like Amazon.com will use a different type of delivery system to meet that promise: unmanned drones.

Amazon PrimeAir DroneLast December, Amazon announced that it was planning to use unmanned flying drones to deliver packages in 30 minutes or less. Although the military uses drones in its operations over Iraq and Afghanistan, the technology has slowly expanded into domestic use. Drones have been used domestically for traffic enforcement, law enforcement surveillance, news gathering, and now, apparently, commercial delivery. If successful, the battery powered drones would allow Amazon to cut out middlemen like UPS or Federal Express.

This announcement came as a surprise to the Federal Aviation Administration (FAA), which tightly controls the commercial use of drones in 2007. Although Congress required the FAA to create a new series of regulations for commercial use of flying drones in 2012, the FAA was not expected to announce any new rules regarding non-military domestic use of drones until 2015.

Amazon’s announcement changed the game. Congressmen from various states began asking the FAA if their states could develop the technology. On December 30th, 2013, the FAA relented and allowed six states, Alaska, Nevada, New York, North Dakota, Texas, and Virginia to open research sites to develop flying unmanned drones for commercial purposes. The states were chosen to test the drones in a variety of climates, geography, and air traffic conditions.

What’s the Worst That Can Happen?
There are a variety of ways a drone could malfunction. If the drone drops a package on top of a car or a child rather than a doorstep, Amazon will have to deal with that injury in addition to the customer’s loss of product. The drones will also have to share airspace with planes. Birds do substantial damage to a plane if a bird gets sucked into a plane’s engine. Imagine the fallout if a drone somehow got caught in an airplane’s turbine.

Amazon should also reconsider its promise about package delivery in 30 minutes. Domino’s Pizza discontinued its delivery promise in 1993 because of the number of personal injury cases arising from delivery boys causing accidents trying to meet the deadline. Although drones will be better drivers than teenagers and will be operating in a practically traffic-free environment, rushing delivery might lead to poor maintenance or other mistakes which could contribute to the accidents already described.

Aside from the personal injury issues, domestic use of drones could also raise privacy issues. The use of droves for package delivery probably won’t cause too much concern, but the potential abuses may be quite serious when drones are used commonly for law enforcement or journalism.

Obviously drone delivery isn’t a privacy threat, but the use of drones for law enforcement or journalism is a real concern. It might be hypocritical for Congress to talk about privacy issues from drones when it approves of NSA metadata collection, but questions regarding the information they might be collecting is a serious concern.