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Secret Filming or pictures with cell phone in MA

While going over some notes for work in the BU library in December, I took several pictures of a girl sittingat an adjacent table whose pants were loose and low exposing to the public the top of her buttocks. Apparently another student reported me when they saw me snap the pics. A little while later I was arrested and my phone confiscated. Despite not being initially charged I was arraigned this weeks for the charge of secret filming. My lawyer has not been easy to access so I wanted to get any feedback possible on a few matters. As far as I can tell 95% of cases prosecuted for this type of charge before involved a landlord, janitor, coach, etc. who used premeditation to install hidden cameras in PRIVATE areas such as locker rooms, bathrooms, bedrooms, etc. The other few cases seemed to again involve hidden or disguised cameras (pen cameras) which were placed in low positions to snap pictures up women's skirts or dresses. I feel that what I did is markedly different to these cases. The girl was sitting there in a public library. The level of privacy here much different than in a locker room, one's own house, or bathroom. The top of her buttocks were in plain view, not concealed under her skirt requiring me to camouflage and elaborately position a camera to invade her privacy. How are the photos I took different to the numerous paparazzi photos of Britney Spears and Paris Hilton with body parts accidentally exposed which are legally published on countless websites? This was the first time I have ever been arrested and I am extremely worried this type of charge will ruin my career in the healthcare industry. I would appreciate any feedback on my case and on any steps I should take. I have a pre trial hearing scheduled in April.

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Submitted Sun, 02/24/2013 - 10:56

To sustain a conviction, G.L. c. 272, § 105(b) specifically requires that "the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person’s knowledge and consent..." I'm not sure that the library is a private setting such that a person wouldn't reasonably expect to be photographed. If your lawyer has not been easy to access, get another lawyer. You shouldn't have to be posting questions like this on legal advice forums if you've hired a lawyer to handle the case. Your lawyer should be able to answer your questions so that you don't have to resort to reaching out like this. If he can't or won't, he's probably not the right lawyer to represent you at trial.

I Agree with Attorney Simoneau, especially regarding his comments about your attorney.  The penalties for violating Section 105(b):  "imprisonment in the house of correction for not more than 21/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment. "  So this is serious business. 

It is interesting to note that Section 105(b) deals with images of person who is nude or partially nude.  The section defines partially nude as "the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola."  I bring that up just to make clear that, as far as I know, it is not a crime to secretly take pictures in public of other people.

However, those with cell phones might run afoul of Massachusetts General Laws Chapter 272, Section 99, under which it is illegal to secretly record a conversation, whether the conversation is in-person or taking place by telephone or other device.  Under this law, secretly recording video with your phone (assuming there is an audio) would not be allowed.

MA Supreme Judicial Court holds that "up-skirt" photographs not illegal under current law.  If that story is removed, here is the actual draft decision.

And now the MA legislature appears ready to amend the law to illegalize "upskirting."

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