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After a man was arrested on the National Mall for voyeurism after filming up women’s skirts on July 4th, some people were like, hey now—-that’s illegal? It is in D.C.: Voyeurism was made a criminal offense by the Omnibus Public Safety Emergency Act of 2006 [PDF]. Below, the District’s rules on putting your “electronic devices” in other people’s “private areas”:

So: “Electronic device” is defined as “any electronic, mechanical, or digital equipment that captures visual or oral images, including cameras, computers, tape recorders, video recorders, and cellular telephones.”

And a “Private area” is defined as “the naked or undergarment-clad genitals, pubic area, anus, or buttocks, or female breast below the top of the areola.”

Here’s how not to put those two things together:

It is unlawful for a person to electronically record, without the express and informed consent of the individual being recorded, an individual who is: using a bathroom or rest room; totally or partially undressed or changing clothes; or engaging in sexual activity.

Also, don’t do this:

It is unlawful for a person to intentionally capture an image of a private area of an individual, under circumstances in which the individual has a reasonable expectation of privacy, without the individual’s express and informed consent.

Breaking those laws is a misdemeanor that can draw up to $1,000 in fines and up to 1 year in jail. If you then go on to distribute or disseminate those images or videotapes, that’s a felony that can draw up to $5,000 in fines and up to 5 years in jail.

But what if a person’s “private are” is exposed in public—-and you use an electronic device to snap a picture for your garden-variety Huffington Post nipple-slip feature? Are you looking at jail time? According to D.C. law, “Express and informed consent is only required when the individual engaged in these activities has a reasonable expectation of privacy.”

And what’s “reasonable” is up for debate. Does Tara Reid have a “reasonable expectation of privacy” when she appears on the red carpet and her breast escapes from her dress? How about a man who deliberately changes his clothes in the middle of the street? How about a woman in the park in a skirt—-does she have a “reasonable expectation of privacy” when there’s a big old hole in the bottom of that traditionally feminine body-covering? What if she wears that skirt, and then raises her leg at too high an angle as she exits a car? With the July 4th arrest, D.C. police are asserting that filming “up-skirts” is illegal in the District. But questions over consent, privacy—-and angles—-remain.

Photo by Mr. T in DC, Creative Commons Attribution License 2.0