Bill Would Make Peephole Photography a Federal Crime

by TChris

The federalization of crime may help politicians craft a "tough on crime" image, but it makes no sense to burden federal courts by criminalizing behavior that state governments can effectively regulate. Michael Oxley, R-Ohio, is exercised about "dirty old men" who use their cell phone cameras to photograph girls "through peepholes." He wants to make it federal crime. House Majority Leader Tom DeLay thinks the legislation is "common sense to protect families."

Some Democrats support the bill. Rep. Charles A. Gonzalez, D-Tex., says the bill is about decency and privacy. Maybe, but the breadth of the law is troubling.

It would establish fines or penalties of up to a year in prison for digital offenders who knowingly capture "an improper image" of a person's "naked or undergarment-clad genitals, pubic area, buttocks or female breast" when the individual has "a reasonable expectation of privacy."

Whether a person in a particular environment has a "reasonable expectation of privacy" is often ambiguous, and there may be circumstances in which the first amendment right to disseminate non-obscene images outweighs a claim of privacy. Some of these battles are being waged in state courts that have enacted similar laws. Unless and until it becomes clear that a nationwide problem exists (are there really a lot of peepholes around?) and that the states are incapable of fixing it, Congress should resist the temptation to create yet another federal crime.

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