"Upskirt" peeping and privacy law

Via Feministing, I ran across an article by Tracy Clory-Florky at Salon that explores the Internet-fueled - though by no means new - trend of "upskirt" photography, which is now a sizeable pornographic genre all its own. It begins thusly:

On a warm summer day two years ago, a 16-year-old girl put on a skirt and headed to the SuperTarget in her hometown of Tulsa, Okla. As she shopped the air-conditioned aisles, a man knelt behind her, carefully slid a camera in between her bare legs and snapped a photo of her underwear. Police arrested the 34-year-old man, but the charges were ultimately dropped on the grounds that the girl did not, as required by the state's Peeping Tom law, have "a right to a reasonable expectation of privacy," given the public location. In non-legalese: Wear a skirt in public, and you might just get a camera in the crotch.

States and privacy experts are now trying to figure out what to do about this.

Samhita at Feministing is rightly miffed that this discussion gets bogged down in whether such photographs of unwitting passersby constitute an invasion of privacy. Of course they do. How do we know? Consider the analogous situation of the bathroom stall. The bathroom itself is a public place. The stall is, typically, not completely closed off from the rest of the bathroom; its walls do not extend all the way to the floor or ceiling. Others could certainly peep over or under. Yet most of us would agree that there is a general, reasonable, and fairly strong expectation of privacy in the closed stall. This has often come up in Fourth Amendment cases, and court generally agree that there is a reasonable expectation of privacy in the stall (though they sometimes disagree about how it applies to many situations involving law enforcement searches and surveillance).

When you wear a skirt on the street, the parts of your body covered by the skirt are like all of you when you're in a bathroom stall. Your deliberate concealment creates a reasonable expectation of privacy as to the parts concealed, even if someone could go out of their way to peek. This doesn't seem to me to be a difficult question.

A more difficult question is, what can be done about the dissemination of such photographs? As Clark-Florky points out:

When it comes to voyeurs who photograph or videotape up a woman's skirt (known as "upskirting") or snap a photo down a woman's shirt ("downblousing"), though, "there are not many practical, legal remedies available to people who find themselves the victim," says Anita Allen, a privacy expert and professor at Penn Law. That's if the woman even realizes she is a victim in the first place, which is unlikely, as the voyeur typically manages to go undetected. If the photo or video is published online -- which, increasingly, it is -- it would be difficult for the subject to ever come across the material. Even if she did, how could she recognize one underwear-clad rear as her own?

One thing we shouldn't do is start shutting down anyone who posts upskirt images. As the Salon pieces notes, upskirt images can be faked, and there is nothing wrong with playing into this fantasy of illicit voyeurism with consensual subjects pretending to be oblivious. I expect that a lot of "upskirt" material online is just that - certainly nearly all of it on commercial sites is. But it shouldn't be difficult to find out if someone is posting staged photos or truly peeping, and there is every reason the law should care about the latter.