Federal Crime of Video Voyeurism - 18 U.S. Code § 1801
While every state in the Union and the District of Columbia now has laws criminalizing the act of video voyeurism in some capacity, it is also considered a federal offense under Title 18 of the U.S. Code section 1801.
If you are charged with a federal crime under this law, you could face hefty fines and federal imprisonment for up to one year.
18 U.S. Code 1801 is the “video voyeurism” law that makes it a federal crime to knowingly and intentionally take an image of a private area of someone without their consent and under circumstances in which they have a reasonable expectation of privacy.
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.”
Someone has a “reasonable expectation of privacy” if they believe their intimate body parts would not be visible or photographed by the public.
To “capture” an image means to videotape, photograph, film, or record by any means, or “broadcast,” which means electronically transmitting a visual image with the intent that another person views it.
The “private area of someone” means the naked or undergarment-clad genitals, pubic area, buttocks, or female breast of that person, which means any portion of the female breast below the top of the areola.
The “federal territories” include national parks, public airports, Veterans' Administration buildings, military bases, and federal courtrooms. Our federal criminal defense attorneys will examine this statute in more detail below.
Video Voyeurism Law - Explained
18 U.S.C. 1801 was codified by the Video Voyeurism Prevention Act of 2004. Congress passed this act to address many privacy issues arising from new technology—among them:
- The proliferation of camera phones and other small video devices that could capture images without the knowledge of the person being filmed;
- The surging practice of capturing "upskirting" and "downblousing" images of unsuspecting women and sharing them via text or the Internet; and
- The fact that, at the time, many states didn't have laws explicitly outlawing this behavior.
The federal video voyeurism law is pretty straightforward. It criminalizes capturing images of an unsuspecting person who is nude or partially nude without their consent and under circumstances in which they have a reasonable expectation of privacy.
This applies whether the images are captured via camera, phone, or another recording device. Specifically, it's a federal crime for anyone to "capture an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy."
As noted above, some specifics to note:
- "Capture" is defined as any videotaping, photographing, filming, recording, or broadcasting (i.e., transmission)
- "Private area of an individual" refers to the "naked or undergarment clad genitals, pubic area, buttocks, or female breast of that individual."
- As noted, having a "reasonable expectation of privacy" means the victim either believed they were in a place they could disrobe without having their private parts captured or had a reasonable expectation that their privates would not be visible to the public. The second part of this definition addresses the "upskirting" and "downblousing" trends.
What are the penalties for federal video voyeurism? It's considered a federal misdemeanor offense, and if you are convicted of this crime, you face up to one year in federal prison per offense, plus potentially substantial fines.
Special Maritime and Territorial Jurisdiction of the United States
Of particular note is that video voyeurism is one of several laws in which the U.S. claims expanded "special maritime and territorial jurisdiction," generally meaning it's a federal crime not only within U.S. boundaries but also in many cases outside the U.S. when it's committed against a U.S. national.
This jurisdiction is explicitly defined in 18 U.S.C. 7 and includes the following:
- Any U.S. territory not under state jurisdiction. This covers all U.S. territories and states that did not have video voyeurism laws at the time this law was passed;
- Federal property;
- American vessels in international waters;
- Foreign vessels en route to and from the United States;
- American aircraft, both on the ground and in the air outside the U.S.;
- Spacecraft;
- Places outside the jurisdiction of any nation.
What Are the Defenses Against Video Voyeurism Charges?
If you have been accused or charged with video voyeurism, you must know that defenses are available. These will vary depending on the specifics of your case, but some common defenses are discussed below.
Perhaps we can argue that you had the consent of the alleged victim. 18 U.S.C. 1801 only criminalizes the act of capturing a person's private parts without their permission. If the other party knew and consented to the act, you're not guilty of a crime.
Perhaps we can argue that the victim was not in a place where they had a reasonable expectation of privacy. For example, if the person was naked in a public place, they didn't have a reasonable expectation of privacy, even if they didn't expressly consent to be videoed or photographed.
Perhaps an argument could be made that you did not intend to capture nudity or violate someone's privacy. For example, if you were a photojournalist and your camera inadvertently caught someone in a mode of undress, you did not have the intent to commit video voyeurism.
Maybe you were carrying out official law enforcement surveillance or authorized intelligence collection. U.S.C. 1801 does not apply to acts of "lawful law enforcement, correctional, or intelligence activity."
Perhaps the federal prosecutor has a weak case. We can negotiate a reduced charge or even get the case dismissed if we can persuade them that there could be insufficient evidence to obtain a conviction.
Federal criminal cases are far different from state-level cases, and you will need a defense lawyer with experienced n federal laws and procedures. Eisner Gorin LLP is located in Los Angeles County, California. Contact us for initial case consultation or fill out the contact form.
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