Law May Curb Cell Phone Camera Use

WASHINGTON -- Cell phone camera voyeurism will soon be a federal offense if the Video Voyeurism Prevention Act of 2004 continues its nearly unopposed march through Congress.

The bill, designed to protect people's privacy from prying camera phones, needs only to pass the House of Representatives and to be signed by the president to become law. While Congress didn't consider it before recessing this week, proponents say chances are good the bill could pass this year.

Still, cell phone manufacturers, while not actively opposing it, are quietly skeptical of laws that criminalize cell phone camera snooping.

Privacy in Public

The Video Voyeurism Prevention Act prohibits photographing or videotaping a naked person without his or her consent in any place where there can be "a reasonable expectation of privacy." Punishment would include fines of up to $100,000 or up to a year in prison, or both.

S.1301 was first introduced in 2000, two years before the first cell phone cameras appeared in the United States. Its original language focused mainly on privacy infringements using hidden video cameras.

After cell phones with cameras caught on here in 2002 and 2003, language was added specifically addressing their potential for privacy violations, and S.1301 then drew greater attention in Congress.

"Now that the bill includes cell phone cameras, there has been a lot more interest in it from the public, the media, and from lawmakers," says Tim Johnson, spokesperson for its sponsor, Rep. Michael Oxley (R-Ohio). "Lawmakers were asking us about cell phone cameras and whether they were covered in our bill."

The Senate passed the legislation unanimously in September. The House Judiciary Committee approved it with very little opposition in May.

Industry Skeptical

Cell phone vendors say such a law may be hard to enforce at best, and may even be a deterrent to promising technology.

"I think it will just create a false sense of security," says Keith Nowak, Nokia media relations manager. "If somebody wants to do something illicit, they will always find a way to bypass the law."

Nowak and other vendors deny voyeurs are any more likely to snoop using a cell phone camera than using other technologies such as digital cameras. "At the end of the day, there is very little difference between a cell phone camera and a regular camera," Nowak says.

But Cedric Laurant, policy counsel of the advocacy group Electronic Privacy Information Center, says the opportunity differs.

"Most people don't carry digital cameras around with them," Laurant says. "With a cell phone camera there is more opportunity to take snapshots of interesting images, and unfortunately this can include images than can threaten privacy."

Voyeurs using cell phone cameras could easily pretend to be doing something else, like dialing or talking, while actually taking pictures, Laurant adds.

Nowak says any new law should not single out cell phone cameras, but should apply to "any technology that captures images." Oxley's bill, however, apparently proposes to do exactly that--in cases where images have been captured without consent in private places, it makes no distinction about the technology used to do so.

California Assemblywoman Sarah Reyes (D-Fresno) favors a technological solution to the privacy problems presented by cell phone cameras.

Instead of a ban, she urges state legislation requiring camera phones sold in California after 2008 to emit an audible noise or flash a light when users press the shutter.

But Nokia's Nowak is cold on that idea too: "All that would do is punish the 99 percent of people who have no intention of using their cell phone camera for anything malicious."

When he attended a wedding in Finland, he used his cell phone camera to take pictures and send them instantly to loved ones back in the states who couldn't attend. "If my phone [had] been beeping or flashing, there's no way I could have done that," he says.

A Nation of Voyeurs?

Meanwhile, the popularity of cell phone cameras continues to grow.

"Most people have a cell phone, and when they upgrade, many of them will want to get this fun new feature," Laurant says.

Just under 9 million of the camera phones were shipped to the U.S. during 2003, says Alex Slawsby, an IDC mobile devices analyst. That number is expected to surpass 27 million in 2004, and reach 100 million in 2008.

Gartner Group analysts say that by 2006, 80 percent of the cell phones sold in the U.S. will be camera phones.

And the U.S. is a relative latecomer to use of cell phone cameras and the privacy concerns they raise. Around the world, people and governments are considering the privacy threat wrought by the ubiquity of cell phone cameras. The gadgets are a voyeur's dream come true--pictures and even video can be shot "discreetly" and immediately emailed or uploaded to the Internet.

Some businesses, like health clubs Club One and 24-hour Fitness, have already banned cell phone cameras from their facilities. Chicago passed a city ordinance in March criminalizing cell phone camera voyeurism. In Japan, where the technology caught on a year sooner than in the United States, cell phone cameras have been restricted in areas where people have an expectation of privacy.

Some states have now enacted electronic voyeurism privacy laws, but the criminal code is still evolving across the country to protect people from the increasingly intrusive view of tiny camera lenses.

Prying Lenses, Changing Laws

The road toward a federal video voyeurism law began with two cases, one in Louisiana and one in Washington state; in both, video technology was used to violate privacy.

In the first case, Susan and Gary Wilson of Monroe, Louisiana discovered a neighbor had installed hidden cameras in the Wilsons' master bedroom and bathroom. To the Wilsons' surprise and dismay, Louisiana authorities said their neighbor's actions were not criminal offenses under state and federal law. After the Wilsons learned their neighbor had similarly victimized others in the community, the couple urged their state representatives to change the law. On July 12, 1999, the Louisiana governor signed a bill making video voyeurism a felony.

The second case occurred in Washington state, where Richard Sorrells secretly aimed a video camera up a woman's skirt as she waited at an ice cream stand during a festival in 2000. The state Supreme Court ruled that filming up women's skirts, though "disgusting and reprehensible," wasn't actually against the law. It overturned the convictions of Sorrells and another man, Sean Glas, accused of taking photographs under women's skirts at a shopping mall.

In 2002, state lawmakers changed the law to give legal recourse to people whose privacy was violated in public. That was well in time to prosecute Jack Le Vu, the first known cell phone camera voyeur to be convicted in the U.S.

In July 2003, 20-year-old Vu was seen in a Seattle area Safeway using a cell phone camera to covertly snap pictures beneath the skirt of a woman shopping next to him. Court documents show that Vu, who later told police he had a panty fetish, managed to get five shots of the woman's underwear.

Under a newly revamped Washington privacy law, Vu was successfully prosecuted and later pleaded guilty to one count of voyeurism. He was sentenced to 60 days jail time and forced to register as a sex offender.

Setting Precedents

The explosive popularity of cell phone cameras has brought into sharp relief a blind spot in state criminal codes through which "public" voyeurs (such as Sorrells and Glas) might escape punishment.

Unlike Washington and Louisiana, most states' criminal codes still do not protect a person's privacy while they are in public places. State privacy laws are primarily geared toward prosecuting "Peeping Toms" who spy on people in their homes, not in public places.

Oxley's Video Voyeurism Prevention Act would provide a remedy in the federal criminal code for exactly that problem, advocates say.

The bill also serves as model legislation for states that have not enacted their own laws, or for those that need to update existing laws in light of the rapid spread of camera technology, according to the bill's authors.

"Previous state laws did not prohibit activities like taking a picture up a woman's skirt, when the woman was in a public place," says Laurant of the Electronic Privacy Information Center. "This bill will specifically target that kind of activity, which should mean people will have more privacy."