Massachusetts 'Upskirt' Ruling Clears Man Who Took Photos

March 6, 2014— -- Massachusetts lawmakers are expected to update state law after their highest court ruled Wednesday that a man who took cellphone photos up the skirts of women riding the Boston subway did not violate state law because the women were neither nude nor partially nude.

The Supreme Judicial Court overruled a lower court decision that had upheld charges against Michael Robertson, who was arrested in August 2010 by transit police who set up a sting after getting reports that he was using his cellphone to take photos and video up female riders' skirts and dresses.

Robertson had argued that it was his constitutional right to do so.

Critics hope similar measures will be taken to update the law in Massachusetts.

“Of course, we are disappointed there is no statute on the books that we can prosecute Mr. Robertson,” District Attorney Dan Conley said.

“I am pretty confident that the legislature is going to take steps immediately to take action to criminalize this.”

The ruling has also left some people skittish about how technology affects their rights to privacy under their clothing.

Existing so-called Peeping Tom laws in the state protect people from being photographed in dressing rooms and bathrooms when nude or partially nude, but the way the law is written, it does not protect clothed people in public areas, the court said.

"A female passenger on a MBTA trolley who is wearing a skirt, dress or the like covering these parts of her body is not a person who is 'partially nude,' no matter what is or is not underneath the skirt by way of underwear or other clothing," the court said in its ruling.

Legal experts such as Anne Bremner of Seattle, Wash., say the ruling exposes a legal loophole.

“There could be challenges, saying, ‘You know what? They were not really nude in that part of the picture.’ That statute really talks about somebody’s nudity and not their privacy,” Bremner told ABC News.

It’s not the first time Peeping Tom laws failed to protect against “upskirting.” In 2002, the Washington State Supreme Court ruled its state’s voyeurism law didn’t apply to “upskirting” in a public place where there wasn’t a reasonable expectation of privacy.

A subsequent law in 2003 closed the loophole, making it illegal to film up women’s skirts. Other states, including New York and Florida, have passed laws specifically criminalizing “upskirt” photos, noting that women have an expectation of privacy under their clothing.

The Associated Press contributed to this report.