Without even getting into the substance of this particular case, let me just rant that the whole "no expectation of privacy in public" thing is a horrible precedent that the government, no doubt loves.
I do have an expectation of some degree of privacy in public. let's say I am walking down the street and am stricken with the sudden urge to pick my nose or scratch my butt. The risk of being seen by one or two random strangers is NOT the same as the risk of being captured in the act on the internet for all eternity.
Big brother does not want we peons the expect privacy ANYWHERE. It's BS.
Which, for the most part, address the issue with the statute involved in this case. How does one criminalize taking a photo of someone else picking their nose?