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In dealing with the apparent scourge of upskirt photography, a key Indiana Senate committee will consider a proposed bill Tuesday by State Sen. Tom Wyss (R-Fort Wayne) that would make it illegal to take or distribute pictures or video of a person’s private areas.

The bill would establish the new crime of “Invasion of Privacy by Photography,” a Class A misdemeanor. A crime is committed if a person, with the intent to: (1) gratify the person’s sexual desires; (2) humiliate or embarrass the victim; or (3) publish, transmit, or disseminate the photograph; surreptitiously photographs the private area of an individual under circumstances in which a reasonable person would believe that the individual’s private area would not be visible to the public.

The penalty is increased to a Class D felony if the person knowingly or intentionally publishes, transmits, or otherwise disseminates the photograph.

Full text of the proposed bill:

IC 35-45-4-6 IS ADDED TO THE INDIANA CODE

Sec. 6. (a) As used in this section, “private area” means the naked or undergarment clad genitals, pubic area, or buttocks of an individual.
(b) A person who, without the consent of the individual:
(1) knowingly or intentionally:
(A) 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, whether or not the photograph, video, or image is permanently saved; or
(B) performs an act described in clause (A) under circumstances in which a reasonable person would believe that the individual’s private area would not be visible to the public; and
(2) 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; commits invasion of privacy by photography, a Class A misdemeanor. However, the offense is a Class D felony if the person knowingly or intentionally publishes the photograph, video, or digital image or otherwise knowingly or intentionally transmits or disseminates the photograph, video, or digital image to another person.

Members of the Senate Committee on Corrections, Criminal and Civil Matters will review the bill on Tuesday, January 11 at 9 a.m. in Room 130 of the Statehouse. The law would become effective on July 1, 2011.

My initial thoughts: I didn’t realize that upskirt photography was such a big deal but it shouldn’t come as a surprise given that everyone has a small camera or cameraphone in their hands nowadays and fashion often involves half-fallen-off clothing. I expect this bill, like many others, is actually just one piece of a much larger puzzle. An immediate concern with the bill is its potential for arbitrary enforcement. First, in what places would a individual’s private area be considered reasonably visible to the public? Las Vegas? The beach? A half-marathon? If a person has their private area willingly exposed (I’m looking at you, Indy 500 crowd), is it now illegal to take photos or do they give implied consent to the entire crowd? If you take a photo of a person and accidentally catch a crotch shot, are you now a criminal?

A person who, without consent, knowingly surreptitiously photographs the private area of an individual by means of a camera with the intent to publish the photograph. By my reading, this could include almost any photo you might take of someone running the Mini to post on Facebook or a blog if the photo shows their “private area.” If that’s the case, the language of this bill definitely needs to be tightened up to avoid potentially draconian enforcement.

Presumably, the state government and businesses would also have to abide by this law, in which case it could serve as a strong shield against the ever-encroaching security/surveillance industry. Just to be certain, it would be nice if this bill specifically included not only “persons” but also organizations and surveillance cameras.

Better yet, here’s a possible “real world” solution…Get over the outdated concept of “private areas.” There are now over 6 billion people on the planet. About half have a penis and about half have a vagina. Acknowledge this biological fact and move on…really, kids age 4 understand this.

I’ll keep you updated as the bill proceeds.