An Open Letter to Journalists

Dear Members of the Media,

I sincerely appreciate all of your hard work in bringing us the news of the day. In this day and age, there is a lot of burgeoning information and it is cumbersome to sift through all of it to provide summaries to the masses. However, there is one thing you do not do that is incredibly frustrating–provide citations.

In reporting on a new science publication, you do not always provide a citation so that the interested reader can learn more. Worse, you rarely identify bill numbers, session laws, or case name/citations when reporting legal news. As a privacy attorney, I found the recent Massachusetts “upskirting” issue might warrant attention. It would have been helpful if you cited the case as Comm. v. Robertson, SJC-11353 (Mar. 5, 2014), even better if you provided a link: http://www.socialaw.com/slip.htm?cid=22645&sid=120 . Or, when the legislature promptly acted to outlaw the actions taken by Mr. Robertson, it would have been nice if you cited Acts of 2014, Chapter 23 (or H. 3934): https://malegislature.gov/Laws/SessionLaws/Acts/2014/Chapter43

As a journalist, I am assuming you read the primary source, so that way I can trust your reporting, correct? So, since you have the primary source, please make it easier for us and let us know how we can find it, too. Because, if you don’t share, it might turn out that you missed the real story. Let me spell it out for you–Massachusetts just made many previously lawful and proper hidden security cameras potentially unlawful.

According to the new law, it is now unlawful to secretly record images of fully clothed breasts, buttocks and genitals. Full stop. Your nanny thinks she’s alone, but you have a nanny-cam. Sorry, you probably just broke the law. You want to know which of the neighborhood kids have been going into your backyard when you aren’t home and stomping your daisies? That’s double the punishment.

Bad reporting of bad reactionary legislative lawyering. At least the reporting can be easily fixed.

Thank you.

Sincerely,
Jay M. Wolman

10 Responses to An Open Letter to Journalists

  1. Griff says:

    I don’t see how those things would be touched by this statute, given that it contains a requirement of proof that the defendant was acting with the intent “to view or attempt to view the person’s sexual or other intimate parts.” Notwithstanding the overbroad definition of “sexual or other intimate parts,” I can’t imagine a court construing the mens rea element to cover non-sexual/voyeuristic conduct. Do you disagree?

    • Jay Wolman says:

      While you may be right about enforcement, technically it prohibits any clandestine recording of a clothed buttock in private. The recorder must likely know a clothed buttock may come into view.
      Since the Robertson case was all about a technical gap in the law, it is certainly appropriate to note how the technicalities of the new law are way overbroad.

      • Griff says:

        I disagree. Just because the recorder “must likely know” that they will capture a certain image doesn’t mean that they made the recording specifically “to view or attempt to view” that image. The knowledge/intent distinction is a fundamental one in criminal law.

        • Rich Julie says:

          We are deemed to intend that which is the natural consequence of our actions. If you speed up when you see a pedestrian in front of you, it’s no defense to day “I didn’t intend to run her over.” If you plant a hidden camera with knowledge that it will photograph clothed buttocks, it is your intent to obtain photos of clothed buttocks.

          • Griff says:

            Not where the statute sets out a specific intent requirement, as this statute seems to. In that case the government has to prove beyond a reasonable doubt that your conscious purpose in doing the act was to accomplish the specific result set forth in the statute. That’s why “I didn’t intend to run her over” is, in fact, a defense to a charge of first degree murder (which requires a specific intent to kill).

            • Jay Wolman says:

              Anyone setting up a nanny cam knows they will record the nanny’s clothed breast and buttocks in a clandestine manner. That is their intent–to record the entire nanny, including those portions. This is not a Sandstrom-type natural consequences issue.

  2. Rich Julie says:

    A statute enacted within 48 hours will almost always be regrettable when looked at by history (say, two weeks later

  3. Pro Se says:

    Anything “might” happen, but then again it might not (and does anyone seriously believe the statute as amended will embolden prosecutors to engage in the horribles you posit). It is incumbent upon lawyers to provide perspective. This is disconcertinly lacking here.

    • Jay Wolman says:

      Which perspective is missing? I actually noted that enforcement was a separate question. You also neglect to realize that Massachusetts law permits a citizen to file a complaint and obtain a show-cause hearing. That is sufficient to disrupt an otherwise law abiding citizen’s life, especially as the magistrate could well find that the technicalities of the law bind him/her.
      Further, criminal laws set public policy. Massachusetts has a pretty strong privacy law in G.L. c. 214, sec. 1B; an offended person could now seek to use the new law as evidence that the nanny cam offends public policy and support a claim for invasion of privacy.
      You may disagree with my perspective, but I fail to see how adding information is a lack of perspective.

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