I’m glad this man was arrested, but I’m pretty sure I have heard some of our high courts rule that when you are in public, you do not have a reasonable expectation of privacy. I’ve heard of at least one case where a peeper was found innocent of violating the law. He should have been kicked in the face.
There’s a really fine line and it’s not one that anyone really wants to go to war over.
On the one hand, no, you don’t have any right to privacy in public. People can take your photo on the street and use it for art or editorial purpose, but if they wanted to use it as advertising, they would have to have a signed license.
Street photography has a long history and has provided us with some wonderful shots of daily life.
Nobody can take a photo in public of something that you aren’t displaying, and if you’re displaying yourself in a way that your underwear is visible, then it’s no crime to take a photo of that.
Now going out of the way to see what is normally not visible is certainly creepy, and we have laws for peeping toms, and I don’t think taping a GoPro to your shoe and going on the subway should be something a person should do, but if there are small cameras and public places, if you don’t want your bits photographed, then cover them up.
You may be thinking of a recent case in Massachusetts, where the Massachusetts Supreme Judicial Court overturned an upskirt photographer's conviction under the state's Peeping Tom laws, because the laws were written in such a way that upskirt photos didn't fall within any of the specific provisions. It wasn't necessarily about a reasonable expectation of privacy, it was that the law specifically applied only in certain locations (dressing rooms, people's own houses, etc.) or when someone was nude or "partially nude." It was a bad result (obviously these creeps should be stopped), but probably the right decision under the law.
The Massachusetts legslature and governor fixed the law within a day or two of the court's decision.