SB 101 – Invasion of Privacy by Photography

SB 101, introduced by Senator Wyss, creates the crime of “invasion of privacy by photography” as a Class A misdemeanor.

I understand the motivation for this kind of legislation, and I sympathize, but it seems to get into “I know it when I see it” territory and, with the ever expanding number of cameras in the world may well be a losing battle.

The elements of the crime are –

A person who, without the consent of the individual:
(1) knowingly or intentionally surreptitiously photographs, video records, or captures a digital image of the private area of an individual by means of camera, a video camera, or any other type of video recording device; or
(2) performs the act described in subdivision (1) under circumstances in which a reasonable person would believe that the individual’s private area would not be visible to the public; and
(3) performs the act described in subdivision (1) with the intent to:
(A) gratify the sexual desires of the person;
(B) humiliate or embarrass the individual; or
(C) publish, transmit, or otherwise disseminate the photograph, video, or digital image;

Where subdivision (2) refers to “the act described in subdivision (1),” it’s unclear whether the surreptitious nature of the recording is incorporated by reference or whether the bill is attempting to say you’re guilty even you weren’t surreptitious but the recording was done in a setting where the victim’s naughty bits wouldn’t be expected to be public.

Incidentally, as a matter of drafting, you probably shouldn’t list “1 and 2 or 3” because it’s confusing as to whether you mean “1+2 or 1+3” or maybe “1+2 or 3.” Working with a list like that, it’s better to make it either “1 and 2 and 3” or “1 or 2 or 3.”