Legal Quandaries: Privacy, Technology and the Case of Upskirting

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By Zoe Smith

Context is critical when it comes to law and policies. Technology has changed the game concerning the enforcement of current legislature because of how much faster technology is developed. Law continues to be behind the curve concerning the understanding of social trends, such as social media, and whether or not contemporary laws and policies are applicable to such fast-paced innovations. To many, it seems that once legislators are able to amend policies to place technology within its scope, a new development is released that is not defined by such statutes.

This is especially true for Georgia’s privacy laws, as the way Georgia statutes are written allows some people to get away with invasions of privacy through technological means. The scopes of such statutes do not apply to certain forms of technology because of the ambiguity in language and definitions. Because legislatures have to play catch-up with every new arrival of technology, the privacy of Georgia citizens becomes severely diminished with each advancement. The only real remedy to combat such distasteful acts are to create new policy in an efficient manner. In the meantime, these loopholes in legislation allow people, such as Brandon Lee Gary, to test the boundaries of privacy law.

Gary, the defendant in Gary v. The State, was a Publix employee who aimed his phone under a customer’s skirt and recorded video while she was shopping. Such an act has come to be known as “upskirting.” The store’s surveillance footage showed Gary partaking in this act a total of four times as the victim walked throughout the store. Gary admitted to recording video underneath the victim’s skirt when asked by authorities. He was convicted of criminal invasion of privacy in violation of OCGA § 16-11-62 (2), a part of Georgia’s criminal privacy statute that is concerned with the invasion of privacy through eavesdropping, surveillance, or intercepting communication.

Gary appealed, stating that he was not in violation of OCGA § 16-11-62 (2), a criminal statute. It should be remembered that Gary was undergoing a criminal lawsuit, not a civil one. The Court was not considering whether or not Gary’s act was offensive, distasteful, invaded the victim’s privacy, or that someone in public has a reasonable expectation of privacy in certain areas of their person, but was solely looking at whether or not Gary was in direct violation of OCGA § 16-11-62 (2).

To answer this question, the Court had to determine exactly what the statute mandated. Subsection (2) states that it is unlawful for “any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view.” While the Court agreed that the place beneath the victim’s skirt was “out of public view,” there had been ambiguity surrounding the meaning of a “private place.” Referring to precedent set by Warren v. State, the Court affirmed that all parts of the statute had to be evaluated in relation to each other. This meant that the Court had to consider the phrase “which occur in any private place and out of public view” as a whole in order to determine what is considered a “private place” under Georgia law.

While one might argue that the area beneath an article of clothing, especially covering genitalia, should be classified as a “private place”, the Court ruled otherwise. The Invasion of Privacy Act stated that a private place is “a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance”. The prosecutor argued that individuals should have reasonable expectations to be safe from hostile intrusions of specific areas of their body, thus claiming that such regions should be classified as private. While the Court agreed that such an area is deemed “private” when evaluated independently, it found that its meaning was more narrowly defined when read in context to the whole statute. As the Court examined OCGA § 16-11-62 (2) in full, it found that the use of the single phrase “which occur in” caused the statute to refer to a fixed physical location that is out of the public view, not to a part of someone’s person. Therefore, the area underneath the victim’s skirt could not be classified as a “private place” even though it was out of the public view and could be considered private in other contexts. The phrasing of the statute caused the ruling to be overturned, and Gary was found not guilty of engaging in criminal violations of privacy under OCGA § 16-11-62 (2).

The ruling does not negate the fact that Gary was still in violation of the victim’s privacy. His act could be considered intrusion of solitude, a type of invasion of privacy defined by the Restatement (Second) of Torts §652B. The section states that “one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” The Court affirmed in the majority opinion that while in public the victim had a reasonable expectation of privacy in areas of her body she covered with clothing, and that Gary’s action was “patently offensive”. Even though Gary did not criminally invade the victim’s privacy, he still enacted in a privacy tort.

However, victims of such acts seldom choose to take civil action. In criminal suits, the defense is subject to fines, jail time, and other punitive damages (money meant to punish) if found guilty. In contrast, only monetary damages are awarded in civil torts. Therefore, if an individual is found guilty of upskirting, they are only subject to pay monetary damages since the violation was of civil jurisdiction rather than criminal. If such a person does not make a lot of money, the plaintiff would not receive a lot in damages; the time and money required for civil tort cases usually outweigh the monetary damages received in such suits.

While Gary v. The State relieved the ambiguity of what constitutes a private place under Georgia privacy codes, it brought light to the disheartening fact that there are gaps within Georgia’s criminal statutes. It is important to note the significance of a code’s phrasing and how quickly it can become outdated.  The absence of updating legislation to fit the current technology-savvy environment has led to upskirting not being a criminal offense in Georgia. As the majority wrote in Gary v. The State, the remedy for such loopholes within Georgia’s statutes lies with the Georgia Assembly. As technology continues to advance faster than legislation, the scope of state statutes becomes more limited. The solution to this issue is for legislators to update such codes more regularly, especially when breakthrough technologies are released. The public should also be more adamant about lobbying for more efficient reform in order to eliminate such loopholes. The over-arching problem is that technology advances faster than legislation, causing it to be outside the scope of such laws. In order for change to occur, people must voice their concerns. A remedy is needed for this prevailing issue that allows people to violate basic common law rights with few legal consequences.

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