The arrest of a Georgia substitute high school teacher who allegedly posted upskirt photos of girls in his class brought to light the forum on which he shared these photos: a community on Reddit called CreepShots. The majority of the photos have been removed, and the teacher’s account is deleted. CreepShots, however, still stands, albeit with more rules prohibiting upskirt photos and photos of girls under 18. The premise of CreepShots is a simple one: men post photos of women they’ve taken without the women’s permission or knowledge. The vast majority of these images are cell phone photographs of attractive women doing everyday things, with no nudity involved. While there’s no doubt about the illegality of surreptitiously photographing the slightly visible underwear of high school girls, there’s a much grayer area when it comes to posting snapshots of adult strangers online.
The law against upskirt photography is found in the Video Voyeurism Prevention Act of 2004, which states that it is a misdemeanor to have ”the intent to capture an image of a private area of an individual without their consent . . . knowingly [to do] so under circumstances in which the individual has a reasonable expectation of privacy.” The term “private area” is defined in the law as ”naked or undergarment clad genitals, pubic area, buttocks, or female breast [below the top of the areola],” and the trickier “reasonable expectation of privacy” is meant to encompass ”circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the individual was being captured; or circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place.” So, sneaking a cell phone camera under a woman’s skirt as she climbs train station steps is not allowed. And, because the word “capture” includes photography, video and electronic transmission, posting upskirt photos online is double not allowed.
But what about a photo of the same woman walking up the steps, except taken from a more innocent angle? No underwear is visible, just her legs and maybe a bit of cleavage–exactly what she intended to show when she got dressed in the morning. Then, it’s a different story. Videotaping and photographing people in public places is not illegal, said the NYPD in response to outrage earlier this year over a man who, going by the name John Zippy, filmed women’s legs on the New York Subway and posted the videos on a Youtube channel called “New York Subway Girls.” Embarrassing as it may be to find your legs on Youtube under the caption “Glamor Girl Short Skirt Bare Legs,” there’s not much that can be done about it unless the video ventures beyond legs into more intimate territory, as outlined in the definition of “private area” above. In response to the criticism, Zippy, whose identity hasn’t been confirmed, wrote that his collection of over a hundred videos and photos should be viewed as an art project: “I totally understand that many people consider it sorta creepy. It is,” Zippy wrote. “I have over the years had conversations with people . . . about how they saw the ‘most beautiful,’ ‘the hottest,’ ‘most amazing,’ ‘the finest” woman on the Subway followed by a vivid description worthy of a sonnet. I decided to try and capture this common occurrence in one place where people could share and comment in an open and nonjudgmental manner.” The titles of his video clips and photos, however, tell a different story, obviously sexualizing the women in not-so-artsy terms.
Are the titles and context, then, the most offensive thing about photos like this? A picture of a subway riding stranger posted on a fashion forum under the title “OMG Where can I buy the coat she’s wearing?” is unlikely to elicit a conversation about expectations of privacy. After all, the woman is being complimented on her style, whether she knows about it or not. On a different forum, with a different title, let’s say “sexy little slut,” the same photograph takes on a much more sordid tone.
Following the scandal surrounding CreepShots, an interesting conversation began on Reddit, when a user asked, “Why is it if people take pictures of attractive girls and post them to a website it’s creepy, but when people post photos of fat people who are in walmart to a website, it’s hilarious?” It’s a question that has no easy answer, at least not one that we’d like to hear. Humiliation humor, at the expense of a Walmart shopper who doesn’t know they’re being photographed, seems to be more socially acceptable than the sexualization of unwitting women. Both are an ethical, if not legal, violation of a person’s privacy. The only difference is that one is mean, while the other is creepy. Perhaps it’s due to an unspoken but vastly shared belief that the People of Walmart, with their terrible outfits, mullets and exposed fat rolls, are so clueless that they deserve to be laughed at, while a pretty leggy gal on the train warrants our respect and protection.
To answer the question initially posed, yes, most of the time it is legal, unless they’re upskirt photos or photos taken in a place where the subject has a reasonable expectation of privacy, such as a bathroom. In Texas, state law prohibits photographing a person without their permission “with intent to arouse or gratify the sexual desire of any person,” so John Zippy wouldn’t do so well there. Things get a little more complicated when it comes to posting these photos online. The laws regarding photography and privacy on the internet have not evolved nearly as fast as the internet itself, and there are very few avenues by which a person who posted a photo of a stranger online could be prosecuted. The laws that do exist mostly concern professional photographers and cover the commercial use of the photos to profit from a person’s likeness. There are also laws against photos whose captions are false but are presented as factual, and paint the subject in a “false light.” These laws are not likely to apply in the case of an unidentified woman being called sexy on an internet forum, particularly if the image focuses on her legs, not face.
The issue is one of ethics and morality rather than one of legality. If you find yourself on Creepshots, the law likely won’t intervene, and it shouldn’t–after all, the right to film people in public places is what gives us the ability to film police, capture crimes in progress and share that footage with others online. However demeaning, the risk of finding your crossed legs on the internet is a risk worth running in exchange for that right.