With more security cameras activated than ever before and modern technology making it possible for virtually anyone to snap a photo or capture video at any time, it's easy to feel as though personal privacy is a thing of the past.
But in California, privacy is still a legal protection, especially in areas like bathrooms or changing rooms where people have a reasonable expectation of privacy.
Penal Code 647(j) criminalizes using cameras and other devices (such as binoculars) to invade a person's privacy. In other words, this statute makes it a crime for someone to invade another person's privacy unlawfully. If convicted of this crime, you could face up to 6 months in jail.
Invasion of privacy occurs when somebody secretly intrudes on or takes pictures or video recordings of someone in a place where they have a reasonable expectation of privacy.
Sometimes, it includes taking a picture of another person under or through their clothing for the purpose of sexual arousal or gratification.
Invasion of privacy often involves using a device like binoculars, a telescope, or a camera to view or record somebody in a private setting, including a dressing room.
The perpetrator's goal is to view their body parts or undergarments. Sometimes, this could be the infamous cell phone stick under a female's skirt to take a quick picture.
Other examples include looking over the top of a bathroom stall while somebody is using it, planting a hidden camera in a dressing room and recording people who use it, and using binoculars or a telescope to view somebody through the windows of their home while on their private property. Let's review this state law further below.
What Is Considered Invasion of Privacy?
PC 647(j) identifies three specific types of invasion of privacy using cameras, video recorders, or other viewing devices. Each requires the prosecution to establish specific points of fact to obtain a conviction.
Using a device to look through an opening or hole defined under PC 647(j)(1)
This section makes it a crime to spy on someone through an opening or hole using a device, such as binoculars or a camera viewfinder, to assist them. To prove this crime, prosecutors must show the following:
- You used a device to look through an opening or hole;
- You watched someone in a room using that device and opening;
- The person in question had a reasonable expectation of privacy; and
- You did so for the purpose of invading that person's privacy.
Using a camera or video recorder to look under a person's clothing defined under PC 647(j)(2)
This practice is commonly called "upskirting" or "downblousing," as the purpose is to capture video of someone's underwear or private parts through their clothes without their knowledge or consent. To prove this crime, prosecutors must show the following:
- You photographed or videotaped someone under or through their clothes without their knowledge or consent;
- The person was in a space where they had a reasonable expectation of privacy, which in most cases is anywhere since the act of wearing clothes has an inherent expectation of privacy; and
- You did so for the purpose of sexual gratification and to invade their privacy.
Using a camera or video recorder to view someone's body in a private room defined under PC 647(j)(3)
This section makes it a crime to record or photograph someone without their consent inside a private room, such as a bedroom, bathroom, changing room, fitting room, or tanning room, where they may be in a state of "full or partial undress." To prove this crime, prosecutors must show the following:
- You photographed or videotaped someone;
- The person in question was in a room with a reasonable expectation of privacy;
- You did so for the purpose of capturing images of that person's body or undergarments; and
- You did so for the purpose of invading their privacy.
Note that for purposes of this section, the victim does not have to be in a full or partial state of undress to be convicted of the crime. Prosecutors must show only that you intended to capture them in that state.
What Are the Related Crimes?
Several California crimes are related to Penal Code 677(j) invasion of privacy, including the following:
- Lewd Conduct defined under Penal Code 647(a) PC, which is public behavior of a sexual nature. Suppose someone exposed their genitals or masturbated while looking in someone's window. In that case, they could be charged with lewd conduct in addition to peeking while loitering;
- Trespassing is defined under Penal Code 602 PC as entering or remaining on private property without permission. If there is insufficient evidence to charge somebody with peeking while loitering, prosecutors could attempt to charge them with trespassing instead;
- Eavesdropping defined under Penal Code 632 PC, makes it a crime to use an electronic device to monitor or record private conservation;
- 18 U.S. Code 1801 federal video voyeurism law.
What Are the Penalties for PC 647(j)
Invasion of privacy is one of several misdemeanor offenses collectively known as disorderly conduct defined under Penal Code 647 PC.
Generally speaking, a conviction under PC 647(j) can result in up to 6 months in jail and a fine of up to $1000. However, these penalties may be doubled if either of the following is true:
- This is your second or subsequent offense under PC 647(j); or
- The victim you were viewing/photographing was a minor.
What Are the Defenses for PC 647(j)
There are several legal defenses a good California defense attorney can use to counter the invasion of privacy charges, discussed below.
Perhaps we can argue that you had no intent to invade the person's privacy. In all instances of this crime, prosecutors must show that you intended to invade the victim's privacy. Refuting that claim successfully can result in an acquittal or dismissing the charge.
For example, your attorney could argue that your camera phone happened to be on at the wrong time/place and just happened to capture the victim through their clothes.
Perhaps we can argue that there was no reasonable expectation of privacy. For example, if you captured video of a person undressing in a public park or a strip club, those are not spaces where that person could reasonably expect privacy.
Perhaps we can argue that you had the person's consent. In some instances, a "victim" who consented to be filmed might claim after the fact that they did not consent, and therefore you invaded their privacy.
If your attorney can provide evidence or witness testimony that the person did indeed consent, you cannot be convicted under PC 647(j). You can contact our law firm for an initial case review by phone or using the contact form. Eisner Gorin LLP is located in Los Angeles, CA.