Most adult webmasters are too young to remember Alan Funt's show Candid Camera, which first appeared in 1947. In some ways, "Candid Camera" was the original reality show: There were no actors, just innocent and unsuspecting people being filmed in amusing situations. The payoff at the end of each skit was the show's tagline – "Smile! You're on Candid Camera" – and the participants' invariably embarrassed shrieks of laughter. The appeal of Candid Camera – and the secret of its nearly 50-year run – lay partly in our enthusiasm for seeing practical jokes played on others (a theme that MTV's Punk'd has exploited to even greater effect by making targets of the rich and famous). But even more appealing was the show's inherent voyeurism: the ability, with Funt's help, to watch unsuspecting people deal with unexpected situations.
It didn't take people long to realize that the show's concept could be made even more compelling by adding a bit of sex to the formula. Funt himself agreed in 1970 to produce a movie version of his show called What Do You Say to a Naked Lady? Funt also collaborated with Playboy on a series of racy hidden camera tricks. More recently, the Lifetime cable channel developed the highly popular hidden camera show Girls Behaving Badly, and Playboy TV is currently running a version of this concept called Totally Busted.
Voyeurism has been an important part of many online adult business plans.
In April 1996, a young college student named Jennifer Ringley installed small cameras in her Dickinson College dorm room and began broadcasting images of her life to online viewers. When she launched her so-called JenniCam, Ringley did not have any plans to turn it into a business, but as her bandwidth costs skyrocketed, she was forced to start charging in order to stay online. It quickly became apparent that there was sufficient demand not only to cover her costs but also generate a substantial profit. During Ringley's seven years online, she was joined by thousands of imitators, the most famous of which was the Tampa, Fla.-based VoyeurDorm, which sold access to images and video feeds from a household filled with cameras and female college students. The Dorm's success (and highly publicized legal victory over Tampa's zoning laws) inspired a seemingly infinite number of imitators covering virtually every sexual niche. For sites like JenniCam, VoyeurDorm and most competitors, of course, the act of "voyeurism" is an illusion; the cameras are perfectly obvious and the models are aware that they are being watched.
But thanks to advances in digital technology, real electronic voyeurism is increasingly easy. Although camera size has steadily decreased over the last decade, engineers have succeeded in maintaining or even improving image quality. With smaller cameras have come greater mobility and sneakiness capability: it is much simpler now to hide cameras in walls and ceilings or even in gym bags, shirt pockets, and even shoes. And many voyeurs, of course, make use of the "hidden in plain sight" approach, one that allows them to take photos while appearing to be innocuously talking on the phone or jotting a note on their PDAs. (Camera phones now outsell nonphoto phones by 4 to1, and 6.3 million were sold in 2004 alone.) With the benefits of digital technology, instantaneous email uploads, and worldwide distribution over the Internet, the oblivious can be exploited in an astonishing breadth before you can say, "Smile, you're on Candid Cam phone."
The photos taken from those vantage points have generated new categories of illicit images on voyeur websites, including the so-called "upskirts" and "downblouses." (One of the Web's biggest voyeur sites, VoyeurWeb.com, calls them "Rapid E-Contris.") The media first became aware of the phenomenon of "upskirts" and voyeur websites back in 1998, about the same time that VoyeurWeb was first launched. It came as shock to people that few if any of the laws then on the books prohibited secret videotaping.
The issue of video voyeurism hit the national scene when a Louisiana woman, Susan Wilson, discovered that her neighbor had been secretly taping her activities in her home. Even worse, Wilson discovered that her neighbor was not violating any state laws. Wilson began to lobby for the creation of an anti-voyeurism bill, first in Louisiana and then at the federal level. (Wilson's experience was also made into a Lifetime movie in 2002, with Law and Order star Angie Harmon playing Wilson.) The bill in Louisiana was introduced by then State Senator Mary Landrieu, who in 1996 was elected to the U.S. Senate. One of the Senate's more conservative Democrats, Landrieu introduced a version of her video voyeurism bill, known as the "Family Privacy Protection Act," in the spring 2002. She was joined on the other side of the Capitol by the deeply conservative Rep. Michael Oxley (R-Ohio), who introduced his own version of the Video Voyeurism Act.
The two proposals failed to pass during the 107th Congress, which ended in 2002, but they were reintroduced the following year. With concern growing about video voyeurism in general, the Senate bill attracted the attention of a number of heavyweights: The bill was introduced by Senator Mike Dewine (R-Ohio) and co-sponsored by Sens. Orrin Hatch (R-Utah), Patrick Leahy (D-Vt.), and Charles Schumer (D-N.Y.), three of the most powerful members of the Senate Judiciary committee. The House approved its bill in September 2004 and the Senate followed suit in early December; President George W. Bush signed then signed the legislation into law on December 23, 2004.
The federal law applies only to video voyeurism that takes place on federal property. It makes it a crime for a someone to "capture an image" of someone when that person has a reasonable expectation of privacy. The law defines "reasonable expectation of privacy" as either:
(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.
What federal lawmakers were trying to do is to make it illegal to take surreptitious photos of people in changing rooms or bathrooms (areas where people disrobe in privacy), or to take so-called "upskirt" or "downblouse" photos (private area an individual would not believe to be visible to the public). The law provides an exception for images captured by "lawful law enforcement, correctional, or intelligence activity."
Obviously, the federal law has some limitations. The most important, of course, is that it only applies to areas over which the federal government has direct jurisdiction: military bases, national parks, maritime areas, etc. In addition, it does not cover, so to speak, someone who sunbathes topless on a National Parks beach, since no reasonable person would have an expectation of privacy under those circumstances. Similarly, it could be vulnerable to a challenge based on the clothing choices of the individual being photographed: with some outfits, there are no "private area[s] ... not ... visible to the public[.]" In any case, there are no indications that anyone has been prosecuted yet under the law.
No one realistically expected that the federal Video Voyeurism Act of 2004 would resolve all of the concerns relating to surreptitious photography. Instead, what lawmakers hope is that the federal law will serve as a model law for states that have a weaker law or no law at all. In the seven years since Susan Wilson was unknowingly filmed in her home, 44 states have made video voyeurism a crime. However, as Newsweek noted in a February 2005 article, many of those laws are weak and difficult to enforce. It is, as it turns out, difficult to draw the line between legitimate surveillance and illegal prurience.
Moreover, prosecutions are only likely in those circumstances where the peeping Tom actually gets caught; if an upskirt photo is successfully taken, it's exceedingly unlikely that the victim will actually realize that her knickers have been broadcast worldwide via the Internet.
Adult webmasters who specialize in voyeurism photos may have more to worry about. The Video Voyeurism Act prohibits "broadcasting" such photos, which arguably includes them. In addition, a website that features photos submitted by the general public has to pay close attention to the debate over 18 U.S.C. sec. 2257, the federal records-keeping law. Although the 10th Circuit Court of Appeals ruled in the Sundance case that secondary publishers do not have a record-keeping obligation, the issue has still not been resolved in the rest of the country. There's absolutely no question that in its most recent round of regulations, the Justice Department is trying to put the onus on secondary publishers to maintain a comprehensive set of records for every image they publish.
Clearly, webmasters face a long-standing dilemma: Voyeur photos are a niche for which there is considerable consumer demand, but there are significant risks to their production and distribution. Before specializing in this area, photographers and webmasters should take the time to understand both the federal law and the law of the state in which they reside.
