The inconvenient truth about revenge porn

[frigidmagi]

Pando

A few weeks ago internet denizens rejoiced when Hunter Moore – the scummy brains behind revenge porn hub IsAnyoneUp.com – was arrested. It felt like justice, and they took solace that those who commit such a repulsive act, like posting un-consented nude photos of jilted lovers, could land in prison.

This week, however, a Manhattan judge ruled that a man who shared nude photos of his ex-girlfriend on social networks and emailed them to her boss and sister, had not violated any law. The lawsuit alleged that Ian Barber of Brooklyn even posted the photos to his public Twitter account.

The criminal court judge, Steven Statsinger, while sympathetic to the plaintiff, wrote in his decision: “The Court concludes that defendant’s conduct, while reprehensible, does not violate any of the criminal statutes under which he is charged.”

Barber’s acts are the essence of revenge porn. Often it starts out innocently enough — as innocent as anything can be when it deals with nudie pictures. A woman sends a lover a naked picture, which is then diffused online without her consent, and this leads to embarrassment and shame. What this case shows is that revenge porn is difficult to adjudicate. Hunter Moore was indicted because he paid a hacker to illegally access targets accounts and steal photos to add to his online trove. Revenge porn had nothing to do with it.

Over the last year we’ve seen a burgeoning movement of advocates and lawmakers coalescing to introduce new bills that would criminalize revenge porn. New Jersey, up until last year, was the only state with a law, then California adopted one a few months back. But state laws don’t go far enough and are of little use against revenge porn. What’s needed is a federal law, according to Professor Mary Anne Franks, of University of Miami’s School of Law, who has proposed such a law.

Franks told US News that companies know they can’t be touched by state criminal laws because a federal law, the Communications Decency Act, holds sway, particularly a clause known as Section 230, which protects online platforms from being liable for the content users post.

By altering this clause, she argues, platforms such as Google, Verizon, or any other website, would face liability for revenge porn.

“The impact [of a federal law] for victims would be immediate,” Franks said.

She would like to see a similar take-down notice regime that exists in copyright law, which requires a site to remove content that others assert belongs to them. If a woman finds out an objectionable photo of herself — Franks calls it “nonconsensual material” – she could notify the site and it would be required to remove it.

In essence, Franks’ legislation would bypass the immunity Section 230 originally granted to “interactive online services,” which includes news websites, blogs, forums, and other purveyors of online content. This sounds simple enough, but has been met with a swathe of critiques from lawyers claiming this could destroy free speech.

Sarah Jeong put it eloquently in Wired when she explained why revenge porn legislation is a bad idea:

Criminalizing revenge porn solves one problem while potentially generating many more. An overbroad criminal law is a threat to the public, runs the risk of being struck down by a court (for violating the First Amendment), or even worse, becomes the basis of questionable convictions and imprisonments.

Jeong also took issue with the final version of California’s revenge porn law, which which “doesn’t cover selfies sent to the vengeful ex or liability for website operators [and] is little more than lip service to the harm suffered by victims.”

Unfortunately, as the woman in New York whose ex-boyfriend humiliated her found out, revenge porn takes advantage of a legal loophole that is extremely difficult to close. And there are no easy fixes.

You know, I think I would be supportive of such a law. You should have control over who sees you naked or engaged in certain acts. Course I also think we need laws telling employers that they can't demand access to people's facebook accounts.

[White Haven]

I can definitely see the call for such a law in theory, but I absolutely dread another DMCA-style takedown-notice law. We have, after all, seen how vastly open to abuse the DMCA itself is, both in terms of what notices are sent, and in terms of the 'eh, fine, a notice was sent, it goes away' reactions of content services like Youtube. The only way I'd not be massively against anything DMCA-style, for this or any other problem, would be if the law had strict, harsh punishments for people filing takedown notices on shit they shouldn't be, and for those punishments to not be based on civil suits. That's huge, and something that gets ignored a lot by lawmakers these days: Nobody cares if 'you can sue,' because no actual people can sue Sony without destroying themselves financially in the attempt.

Now, I don't think that this hypothetical law is in any way likely to be as abused as the DMCA, but that act still serves as a very valid cautionary tale about one-sided legislation of that sort.

[Josh]

Oh yeah, this is going to have to be carefully calibrated and then once it's in the wild there'll have to be a bunch of court challenges to sort it out, but it is something that's a necessity in this day and age.