BOSTON (AP) — A man who took cellphone photos up the skirts of women riding the Boston subway did not violate state law because the women were not nude or partially nude, Massachusetts’ highest court ruled Wednesday.
The Supreme Judicial Court overruled a lower court that had upheld charges against Michael Robertson, who was arrested in August 2010 by transit police who set up a sting after getting reports that he was using his cellphone to take photos and video up female riders’ skirts and dresses.
The ruling immediately prompted top Beacon Hill lawmakers to pledge to update state law.
Existing so-called Peeping Tom laws protect people from being photographed in dressing rooms and bathrooms when nude or partially nude, but the way the law is written, it does not protect clothed people in public areas, the court said.
"A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is ‘partially nude,’ no matter what is or is not underneath the skirt by way of underwear or other clothing," the court said in its ruling.
State law “does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA,” the court said.
The SJC said that while such actions should be illegal, they are not, given the way state law is written.
Suffolk County prosecutors said their interpretation of the state’s Peeping Tom law was that “upskirt” photos are illegal.
District Attorney Dan Conley said prosecutors are hoping state lawmakers will change the wording of the statute by the end of this legislative session.
"What we have is not that the Supreme Judicial Court is saying this is OK," Conley said. "The statutory language just didn’t quite fit the conduct."
In its ruling, the court said that other states, including New York and Florida, have passed laws specifically criminalizing upskirt photos, noting that women have an expectation of privacy under their clothing. Washington lawmakers closed a loophole in that state’s voyeurism law a decade ago, after a similar ruling there.
Conley added that this conduct has become more and more prevalent, and he urged riders to be alert.
"This action is immoral and reprehensible; don’t do it," he said.
A telephone message left with Michelle Menken, Robertson’s attorney, was not immediately returned.
Senate President Therese Murray said she was “stunned and disappointed” with the court ruling. She said the Senate will respond quickly.
"We have fought too hard and too long for women’s rights to take the step backward," Murray said in a statement. "I am in disbelief that the courts would come to this kind of decision and outraged at what it means for women’s privacy and public safety."
Gina Scaramella, executive director of the Boston Area Rape Crisis Center, said such photos are a serious invasion of privacy. She said the law needs to catch up to technology.
"It really is a form of sexual harassment. It’s a violation for the person who is unknowingly getting their body photographed," she said. "People wear clothing for a reason and having someone violate that privacy is a real problem."
MBTA spokesman Joe Pesaturo said that Transit Police support the Suffolk County District Attorney’s efforts to work with the Legislature in rewriting the statute. He did not say what the MBTA could do in the meantime to prevent the activity.
Pesaturo said that in the past three years, T police have investigated 13 “secretly photographing” cases. In some cases, the alleged offender was issued a court summons. Some remain open investigations. During those three years there was an average of 395 million passenger trips on the MBTA.
Massive open online course provider Coursera has had to block accessibility to its courses in Iran, Cuba and Sudan due to US government sanctions on the countries.
Coursera made the announcement in a blog post, saying: “Providing access to education for everyone has always been at the core of Coursera’s mission, and it is with deep regret that we have had to make a change to our accessibility in some countries.”
Students in these countries will be unable to log into course pages or create new accounts as of this week due to an IP address block implemented by Coursera. The organisation says it is working with the US Department of State and Office of Foreign Assets Control in order to reinstate access to its courses for those trying to access them from Iraq, Sudan and Cuba. The reason that the restrictions have only just come into effect, Coursera states, is because up until now the the applications of export control regulations to MOOCs has been “unclear”, but has recently been clarified.
"We recently received information that has led to the understanding that the services offered on Coursera are not in compliance with the law as it stands. Accordingly we have instituted a restriction in compliance with the current export controls to ensure that our business remains in good standing with the law."
Initially Coursera thought the restrictions applied to Syria too, but has since learnt that there are exceptions governing sanctions on Syria authorising the work of NGOs, particularly with regards to encouraging access to education.
The restrictions are written into US economic sanctions that apply on a country-by-country basis. They apply to MOOCs due to the fact they are providing “services” within certain countries. Somewhat ironically, the US has previously criticised Iran for actively restricting access to the web and working to prevent the free flow of infromation in and out of the country.
It is not known whether the restrictions also affect other MOOC providers in the US, but Wired.co.uk has contacted major provider Udacity to see if it too will be changing accessibiliy to courses in line with rules.
Harvard and MIT-founded edX has managed to avoid the restrictions according to the Financial Times, as it applied for a licence last year allowing it to operate in Iran and Cuba. It is still waiting to hear if it has also been granted a licence to operate in Sudan, but has not blocked access to courses there in the meantime.
There are still some hoops the organisation must jump through however before it can hand over certificates to students in these counties who have chosen to earn qualifications through edX courses.
In the FAQ section of its website, edX states: “At this time, edX is holding certificates for students connected with Cuba, Iran, and Sudan pending confirmation that the issuance is in compliance with US embargoes.”
A petition has been set up on a We the People section of the White House website appealing to the Obama administration to reverse the policy prohibiting MOOCs from including students from sanctioned countries.
"During this difficult time, we thank the Coursera community for your patience and continued support as we work to ensure that students worldwide have access to a great education," writes Coursera on its website.
It’s highly possible that Coursera, like edX, could be granted permission to reinstate accessibility to its courses soon, but in the meantime, students in affected countries will have to either wait it out, or follow the example of those evading censorship in countries like China and use a VPN.
The New America Foundation (NAF) has released a damning report claiming the NSA’s mass surveillance programme has “no discernible impact” on the prevention of terrorism. The report, “Do NSA’s Bulk Surveillance Programs Stop Terrorists?”, also claims that the NSA is guilty of repeatedly exaggerating the efficacy of its bulk surveillance techniques in addition to misleading the public over aspects of 9/11, and of failing to prevent crime efficiently due to an insufficient understanding of its own intelligence already sourced by traditional means. The NAF describes itself as a non-profit, nonpartisan public policy institute and think tank focussing on a wide range of issues, including national security studies. Investigating claims made by the US government concerning the competence and effectiveness of the NSA’s bulk surveillance since 9/11, the NAF report compiled a database of 225 people from the US, including US nationals abroad, who have been indicted, convicted, or killed since the 9/11 terror attacks. Key methods used to initiate investigations on these individuals were identified by the report and divided into eight separate categories: “Those cases in which the initiating or key role was played by the bulk collection of American telephone metadata under Section 215; NSA surveillance of non-US persons overseas under Section 702; NSA surveillance under an unknown authority; tips from the extremist’s family or local community members; tips regarding suspicious activity from individuals who were not part of an extremist’s family or local community; the use of an undercover informant; the routine conduct of law enforcement or intelligence operations in which the NSA did not play a key role; and self-disclosure of extremist activity on the part of the extremist in question.”
The report also acknowledges that the public records from which it drew the information may be incomplete and that there is reason to believe the government has actively concealed the role of NSA programmes in some investigations: “Drug Enforcement Administration (DEA) agents have been trained in some instances, for example, to conceal the role of a DEA unit that analysed metadata to initiate cases.”
The bulk collection of US citizens’ telephone metadata — which includes phone numbers, both incoming and outgoing, as well as the exact time, date and duration of the calls (but not the content) under Section 215 of the US Patriot Act — accounts for having aided only 1.8 percent of the NSA’s terrorist cases.
An equally unimpressive 4.4 percent of terrorism cases were aided by the NSA’s surveillance of non-US persons outside of the United States under Section 702 of the FISA Amendments Act.
Commenting on these figures the report states, “Surveillance of American phone metadata has had no discernible impact on preventing acts of terrorism and only the most marginal of impacts on preventing terrorist related activity, such as fundraising for a terrorist group.”
Of the terrorist plot regularly cited by the US government as evidence of the necessity and success of its surveillance techniques — namely, Basaaly Moalin, a San Diego taxi driver who provided $8,500 (£5,171) to an al-Qaeda affiliate in Somalia — the NAF report states that the NSA’s actions contradict its claims that the expediency afforded by Section 215 was largely responsible for the success of Moalin’s capture.
"According to the government, the database of American phone metadata allows intelligence authorities to quickly circumvent the traditional burden of proof associated with criminal warrants, thus allowing them to ‘connect the dots’ faster and prevent future 9/11-scale attacks. Yet in the Moalin case, after using the NSA’s phone database to link a number in Somalia to Moalin, the FBI waited two months to begin an investigation and wiretap his phone."
The reasons behind the two-month delay — during which time the FBI was not monitoring Moalin’s calls, despite being aware of his number and identity — are still unclear. What is clear, however, is that the bulk surveillance programme did not expedite the investigative process, despite the US government’s claims to the contrary.
The report also reviewed three key terrorism cases frequently cited by the US government in defence of the NSA’s bulk surveillance. It concluded that government officials exaggerated the role of the NSA in the cases against David Coleman Headley and Najibullah Zazi. The significance of the threat of Zazi, who planned to bomb the New York Stock Exchange, was also exaggerated, claims the report.
More emphasis, the report suggests, should be placed on conventional forms of law enforcement, which are demonstrably more efficient. “The overall problem for US counterterrorism officials is not that they need vaster amounts of information from the bulk surveillance programs, but that they don’t sufficiently understand or widely share the information they already possess that was derived from conventional law enforcement and intelligence techniques.”
Read the full report (PDF) and an additional break down of the details.