'Upskirt' photos legal in Mass., court rules. Not for long, critics say.

Massachusetts lawmakers, in an indignant moment, may take steps soon to outlaw the taking of so-called "upskirt" photos of people in public, after the state's highest court ruled unanimously on Wednesday that, under existing state laws, upskirting is legal.

Beacon Hill lawmakers and officials widely criticized the ruling after it was issued, and some talked of criminal penalties for offenders, in acknowledgment of how technology has empowered “peeping Toms.”

The Massachusetts Supreme Judicial Court, ruling on a Boston-based case in which a man took upskirt photos of female straphangers riding the subway, found that a Massachusetts law criminalizing the covert photographing of nude or partly nude people does not apply to “upskirting,” because the photographed women are wearing clothing.

Here are the facts of the case. Michael Robertson was arrested in August 2010 for taking cellphone videos and pictures up the skirts of two women riding on the MBTA’s Green Line, including a transit police decoy. He was charged with secretly photographing a partially nude person.

A Boston Municipal Court judge rejected Mr. Robertson’s request that the charge against him be dropped. But Robertson appealed, and the Supreme Judicial Court, finding in his favor, dismissed the charge.

"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," wrote Justice Margot Botsford, in the decision.

A law that criminalizes upskirting “is eminently reasonable,” she added. The current law, passed in 2004, “does not address it," she wrote.

The court also noted two proposed measures, introduced in January 2013 and still pending in the legislature, that would make upskirting illegal. Both measures “appear to attempt to address the upskirting conduct at issue here,” Justice Botsford wrote.

This is not the first time that a court has found that existing laws do not apply to upskirting, a somewhat new problem made possible by technology that creates unprecedented opportunities for peeping Toms, whose tools were once little more sophisticated than keyholes and pulled-back blinds.

In some states, such rulings have prompted lawmakers to revise the laws, a kind of legal catch-up also seen in new legislation on "revenge porn," for example. In both Indiana and Washington, lawmakers reacted to court rulings that upskirters had to be let off, under current state laws, by approving new laws to make upskirting illegal. New York and Florida have also enacted laws explicitly criminalizing upskirt photos, as the court’s decision noted.

It appears that the Boston case could push Massachusetts lawmakers to update state laws.

“Every person, male or female, has a right to privacy beneath his or her own clothing,” Daniel Conley, district attorney for Suffolk County, said in a statement after the ruling. “If the statute as written doesn’t protect that privacy, then I’m urging the legislature to act rapidly and adjust it so it does.

“No respectable citizen wants this situation to be allowed to continue,” he said.

Massachusetts House Speaker Robert DeLeo also told reporters outside the State House that “the House will begin work on updating our statutes to conform with today’s technology immediately.” Senate President Therese Murray, meanwhile, said the “Senate will act swiftly” to address the apparent gap in the law.

“We have fought too hard and too long for women’s rights to take the step backward that they did today,” she said.