Under 18 U.S. Code § 1801, known as the "Video Voyeurism Prevention Act of 2004," it is federally illegal to intentionally record a visual image of someone's "private area" without their consent, especially in places where they reasonably expect privacy. Violating this law can result in penalties of up to 1 year in prison and a fine of up to $100,000. 

The video voyeurism law makes it a federal crime to capture an image of someone’s private parts when they expect privacy.

In simple terms, it is illegal to knowingly take an image—such as photographing, filming, or recording—of another person's private area without their consent, especially when they expect privacy. 

"Private area" refers to the genitals, pubic region, buttocks, or female breasts when exposed or covered only by underwear. "Reasonable expectation of privacy" pertains to locations where a person can reasonably expect to undress privately or where their private parts are not visible to the public. "Capture" encompasses videotaping, photographing, filming, or recording by any method. 

The act is classified as a felony, and if a minor is involved, extra charges like producing and possessing child pornography may also be filed, both carrying substantial prison sentences.

Recent laws, including the "Stop VOYEURS Act of 2024," seek to broaden prohibitions on video voyeurism, especially those impacting interstate or international commerce. 

What are the penalties for federal video voyeurism? It is classified as a federal misdemeanor. If convicted, you could face up to one year in federal prison for each offense, along with potentially significant fines.

Key Takeaways

• Although all states and the District of Columbia have laws that criminalize video voyeurism, it is also a federal offense under Title 18 U.S. Code section 1801. A federal charge may result in significant fines and up to one year of federal imprisonment.
• 18 U.S. Code 1801 is the federal law against "video voyeurism," which criminalizes knowingly and intentionally capturing images of a person's private area without their consent, especially when they reasonably expect privacy.
• Someone has a "reasonable expectation of privacy" if they believe that their intimate body parts would not be seen or photographed by others in public.
• The term "federal territories" encompasses national parks, public airports, Veterans' Administration buildings, military bases, and federal courtrooms.

What Does Section 1801 Say?

18 U.S.C. 1801 says, "Whoever, in the territorial jurisdiction of the United States, has the intent to capture an image of a private area of someone without their consent, and knowingly does so under circumstances in which they have a reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both. 

(b) In this section—

(1) the term “capture”, with respect to an image, means to videotape, photograph, film, record by any means, or broadcast;

(2) the term “broadcast” means to electronically transmit a visual image with the intent that a person or persons view it;

(3) the term “a private area of the individual” means the naked or undergarment-clad genitals, pubic area, buttocks, or female breast of that individual;

(4) the term “female breast” means any portion of the female breast below the top of the areola; and

(5) the term “under circumstances in which that individual has a reasonable expectation of privacy” means—

(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the individual was being captured; or

(B) circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place.

(c) This section does not prohibit any lawful law enforcement, correctional, or intelligence activity.

Explanation of Video Voyeurism Law 

18 U.S.C. 1801 was created by the Video Voyeurism Prevention Act of 2004. Congress passed this law to address privacy issues arising from new technologies, such as the widespread use of camera phones and small video devices that can secretly record images without the subject's awareness.

There were concerns about the increasing trend of taking "upskirting" and "downblousing" photos of women without their knowledge and sharing them through texts or online. At that time, many states lacked laws specifically banning this behavior.

The federal video voyeurism law is clear: it makes it a crime to secretly record images of someone nude or partly nude without their permission, especially when they reasonably expect privacy.

This rule applies regardless of whether the images are captured with a camera, a phone, or another recording device.

It is explicitly a federal offense for anyone to capture an image of a person's private area without their consent if the individual has a reasonable expectation of privacy in that situation.

Key Definitions of the Law

• "Capture" refers to any act of videotaping, photographing, filming, recording, or broadcasting (i.e., transmission).
• "Private area of an individual" refers to the genitals, pubic area, buttocks, or female breast that are either naked or covered only by undergarments.
• Having a "reasonable expectation of privacy" refers to the victim's belief that they were in a place where they could disrobe without their private parts being recorded or that their privates would not be visible to the public. The latter part of the definition concerns trends such as "upskirting" and "downblousing."

United States' Special Maritime and Territorial Jurisdiction

A notable point is that video voyeurism is among several crimes for which the U.S. claims expanded "special maritime and territorial jurisdiction."

This typically means it is a federal offense not only within U.S. borders but also in many cases outside the U.S. if committed against a U.S. national. This jurisdiction is clearly defined in 18 U.S.C. 7 and encompasses the following:

• Federal property.
• American ships operating in international waters.
• Foreign vessels traveling to and from the United States.
• American aircraft, whether on the ground or in flight outside the U.S.
• Areas located beyond the borders of any country.
• Any U.S. territory that is not under state jurisdiction, including all U.S. territories and states without video voyeurism laws at the time this law was enacted.

Defenses Against Video Voyeurism Charges

If you've been accused or charged with video voyeurism, it's important to know that defenses may be available. These defenses depend on the details of your case, but some common ones are outlined below.

For instance, our federal criminal defense lawyers might argue that you had the alleged victim's consent. Under 18 U.S.C. 1801, the law criminalizes the unauthorized capture of a person's private areas. If the other person was aware of and agreed to the act, then you are not committing a crime.

One could argue that the victim lacked a reasonable expectation of privacy if they were in a public setting. For instance, being nude in a public space generally means they don't expect privacy, regardless of whether they consented to being filmed or photographed.

Additionally, an argument might be made that there was no intent to capture nudity or breach someone's privacy. For example, if you are a photojournalist and your camera records someone partially undressed by accident, you did not intend to engage in video voyeurism.

Maybe the federal prosecutor's case is weak, and we might negotiate a plea deal or have the case dismissed if we can show there's not enough evidence for a conviction. Federal criminal cases differ significantly from state cases, so you'll need a defense lawyer experienced in federal laws and procedures. Contact our federal criminal defense law firm at Eisner Goirn LLP for more information.

Related Content:

• Title 18 U.S. Code § 1801
• Video Voyeurism Prevention
• Stop VOYEURS Act of 2024