December 22, 2004
The Newest Arrow in the Federal Criminal Quiver
The Senate's passage of the Video Voyeurism Prevention Act of 2004 on Dec. 7, following earlier House approval of an identical measure, means that there will be another statute added to the long roster of federal offenses once President Bush signs the legislation into law. The new crime is a response to the growing number of cell phones with cameras, some of which have been used to snap pictures of unsuspecting individuals in various stages of undress, which are then posted on the internet. Senator DeWine (R-Ohio), the Senate sponsor of the legislation, stated that this new law "will help safeguard the privacy we all value as well as ensure that our criminal law reflects the realities of our rapidly changing technology." Approximately 30 states have similar provisions, and the federal law is limited to conduct on federal property and within the maritime jurisdiction to avoid conflicts with state laws. The statute uses the term "reasonable expectation of privacy" to describe the interest of the individual victim invaded by the defendant, a notoriously vague phrase that will likely test the statutory interpretation skills of the federal courts. The law provides as follows:
`(a) Whoever, in the special maritime and territorial jurisdiction of the United States, has the intent to capture an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both.
`(b) In this section--
`(1) the term `capture', with respect to an image, means to videotape, photograph, film, record by any means, or broadcast;
`(2) the term `broadcast' means to electronically transmit a visual image with the intent that it be viewed by a person or persons;
`(3) the term `a private area of the individual' means the naked or undergarment clad genitals, pubic area, buttocks, or female breast of that individual;
`(4) the term `female breast' means any portion of the female breast below the top of the areola; and
`(5) the term `under circumstances in which that individual has a reasonable expectation of privacy' means--
`(A) 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
`(B) 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.
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