Loopholes in new CA laws pose the question: Are criminal penalties the best response to addressing this increasing cyber problem?
The technological phenomenon called ‘revenge porn’, typically characterized by disgruntled, ex-lovers posting explicit pictures online of their former partners without consent, is gaining increasing notoriety, particularly in the media. While the coined term is no doubt attention-grabbing, it can be misleading in failing to connote those other scenarios that constitute non-consensual pornography such as where explicit images have been illicitly obtained and distributed by third parties.
Nonetheless, while it is generally not illegal per se, moves to criminalize this growing cyber threat are on the rise. Last week, AlterNet reported on the new anti-revenge porn legislation signed into effect in California, which makes it a misdemeanor to post identifiable nude photographs of another person online without their permission. Such behavior could now land you in jail and cost you a fine of up to $1000.
While this new bill has been commended by victims as a step in the right direction towards addressing the problem, the law has been criticized as being too lenient for a number of reasons.
First, it fails to offer legal protection to victims who took pictures of themselves ie. ‘selfies’ and shared those images with their prospective social media publisher. In fact, under the California law, people can only be prosecuted for posting explicit images if they themselves ‘clicked’ the button in photographing that person. In other words, if the victim took the picture him/herself, the law doesn’t apply. Moreover, it makes no provision for third parties such as computer fraud, re-distributors or hackers who may have gained access to private images unlawfully before posting them online.
In this regard, the bill’s author Sen. Anthony Cannella, told the San Francisco Gate that while ‘selfies’ were considered early on in the legislative process, he excluded them due to concerns from other members that it could result in an increase in the already overcrowded prison population: “My bill would have died if we didn’t do that,” he said.
Many advocates consider this to be a major oversight in the legislation, particularly in light of a recent survey conducted by Cyber Civil Rights Initiative, which found that 80 percent of pictures published in revenge porn situations were self-taken photographs.
Nonetheless, Cannella contends that some compromises had to be made to get the ball rolling: “I can understand [victims'] concerns with the final bill, but at least we got people talking about it…Then we can do more in the future,” he said.
Furthermore, under the California law, the publisher must have posted the picture “with the intent to cause serious emotional distress”, a subjective test, which makes it difficult for the victim to obtain justice since prosecutors will be faced with the onerous task of having to discount other reasons for intent that the defendant might cite such as financial motivations.
New York attorney, Oscar Michelen, an advocate fighting for victims of revenge porn explains this emerging trend to AlterNet:
“Before the internet, revenge porn used to be something small that you talked about in small circles, at the school or supermarket. But with the Internet, it’s a whole new world. The most damaging thing is now your small circle is millions of people through social media who have the opportunity to join in on the conversation and spread material. The punishment, shaming, humiliation and revenge goes on forever in the digital era, whereas with old media it had a limited duration,” he said.
Furthermore, what makes revenge porn particularly debilitating is the accompanying defamatory and identifying language published alongside the picture, which has long-lasting ramifications for the victim. One need only visit revenge porn website, myex.com, to comprehend the full extent of the malicious intent that underpin these postings. There, you will be greeted with an image of a fresh-faced blond girl in a compromising sexual position accompanied by her full name and the words “18, from Anderson, North Carolina. This bitch love cum and is always down for a threesome”. When clicking on the “Remove my Name” link, the following page reads: “Delete this record now! $499” What recourse is now left for that young woman? Should her entire reputation completely rest on the words of a bitter ex-boyfriend intent on fuelling misogyny, merely because she allowed herself to be photographed sexually by someone she trusted?
Bekkah Wells, victim and founder of ‘Women Against Revenge Porn’, is all too familiar with the ‘revenge porn’ narrative, recalling the moment to AlterNet when she realized that an ex-lover had posted sexually, explicit images of her online:
“I was raped of my dignity, my identity and of my reputation. I am not the kind of women I was portrayed to be in these pictures. But here I was, branded as this porn star. It’s humiliating. I can’t even begin to describe the feeling. It feels like the wind has been literally knocked out of you. Then, once you get over the initial shock, you are living always with a sense of low-grade fear and humiliation,” she said.
In response, Wells filed a police report but was told that since she was not under 17 when the pictures were taken and she had consented to the photography, her only recourse was to file a civil law suit. Such stories illustrate the practical obstacles for those victims seeking criminal justice, as Michelen explains:
“At the moment, in order to remove these online images, a victim has to file a takedown notice to the hosting website via the federal Digital Millennium Copyright Act but this is a particularly arduous process, and frequently ignored. Alternatively, all we have to fight this is civil actions such as right to privacy and right to publicity, where people can sue for compensation. Where’s the justice in that? Defendants who have bad credit and loads of judgments against them are not going to care about civil liability. On the other hand, if you know you could be arrested, you would think twice. Having criminal legislation hanging over ones head is definitely a greater deterrent,” he said.
Wells agrees, adding that laws should be wide enough in scope to cover self-images or ‘selfies’:
“The majority of victims out there take ‘selfies’ but just because a woman sends an image of a private picture she took to another person, it doesn’t ‘mean she is consenting to its world-wide publication. By analogy, just because you consent to letting someone in your living room, that does not mean you are consenting to letting him or her into your bedroom,” she said.
Currently, California is only the second state behind New Jersey with anti-revenge porn legislation in the United States. While attempts in Florida to outlaw ‘revenge porn’ have been rejected, New York is the latest state to move toward outlawing revenge porn with the recent announcement of two new bill proposals, backed by both Republican Sen. Phil Boyle and Democratic Assemblyman Francisco Moya.
However, unlike the California law, the New York bill would be modeled on New Jersey legislation in which protection extends to dispensation of self-images and videos under their criminal ‘Invasion of Privacy’ statute. Boyle, who is leading the movement in New York, says the bill would specifically apply to making explicit self-portraits and videos taken by the victim public:
“If a young woman takes a picture of herself, sends it to the boyfriend (and) a couple of years later he's posting it, that would be included under our legislation and that’s a very significant improvement in the law.”' he told radio 1010 WINS, The Daily Mail reported.
Two additional legislators, Democrat Edward Braunstein and Republican Sen. Joseph Griffo have also drafted their own anti-revenge porn bills, which would increase possible fines up to $30,000 and would also includes selfies. What's more, New York is not the only state hot on the heels of California.
According to University of Miami School of Law professor Mary Franks, Maryland, Wisconsin, Alabama and Kansas have also begun drafting revenge porn legislation, New Week reported. However, Franks concedes that state laws have limited jurisdiction, which is why she is advocating for a federal criminal response:
“Given the ease with which individual purveyors of non-consensual pornography can access or distribute images anonymously, it is difficult to identify and prove…who they are...State laws, while important, have limited jurisdiction. The fact that one or even many states might criminalize non-consensual pornography will not help a person who is victimized in a state that does not. The Internet has greatly facilitated the capacity to commit interstate crimes, and the only way to reach such crimes is through federal law, she wrote.
Nevertheless, the anti ‘revenge porn’ movement is gaining increasing momentum thanks to the highly publicized recent class action joined by 24 women against the owners of two revenge porn sites, Texxxan.com and its hosting company GoDaddy, claiming invasion of privacy and mental anguish for publishing explicit photographs submitted without permission.
Traditionally, site owners and operators have avoided liability by claiming immunity under Section 230 of the Communications Decency Act, which states that websites aren’t liable for content submitted by users. To circumvent this issue, the lawsuit argues these sites actually publish pictures with full knowledge that women are not consenting, evidenced by their explicit advertising and the fact that they charge photo removal fees up to $250 and fail to delete images when asked to do so by victims.
32-year-old Texan, Hollie Toups, a survivor of revenge porn and founder of victim support group Army of She explained to AlterNet why she is leading the charge in this class action movement of which she is a party:
“Upon finding out my photos had been posted on the internet - photos that were never meant for anyone other than the person I sent them to - my life literally changed forever. I felt everything I had worked for my entire life had been destroyed by the click of a button from someone's malicious hand. My job, my career, my school, my social life, everything suffered until I was able to take my life back and face these monsters,” she said.
Moreover, Toups' attorney, John S. Morgan, who filed the class action, said host companies are equally culpable and should not escape accountability: “GoDaddy is profiting off of it. The reality of it is at some level this issue of revenge porn has to become a public discussion and legislative discussion and it raises issues of corporate responsibility,” he told BetaBeat
Toups echoes that sentiment: “I think the administrators of these websites hold just as much if not more responsibility that the people posting the photos. They're encouraging these posters to humiliate victims and often times they offer money for photos of certain women…There is no legitimate reason websites like this should exist. None,” she said.
So why aren’t more states jumping on board to criminalize this behavior? The answer lies in the fear expressed by many advocates, including the American Civil Liberties Union who opposed the California bill, that regulating content on the web impinges on freedom of speech and first amendment rights.
“You might ask, who could be against bills like these? But the media lobby is increasingly concerned with criminalizing all things that could affect the first amendment or freedom of expression rights. Therefore, when you see this bill, you will see media companies that will lobby to delay it and fight to obtain as neutral-protective language as possible in the most narrowly tailored way to ensure legislation doesn’t prevent publication of ‘newsworthy’ items. Think about cases like Snowden, which have already shown us that newspapers can publish stolen information as long as it is newsworthy. There are times when sexually exploitive images posted online non-consensually may fit within that ‘public interest’ dynamic, so newspapers want to ensure their rights are not being limited,” Michelen said.
Therein lies the difficulty in regulating this growing cyber trend, when the line between perpetrator and victim is not always clear-cut. For example, if the ‘victim’ is a married politician whose naked ‘selfies’ are published without consent - think former New York Congressman Anthony Weiner – a case like that, would theoretically be protected under the proposed New York bill. On the other hand, it is difficult to imagine a situation where it could be argued that publishing sexual content of your average Jane Doe could ever be in the public interest or justifiable.
Unless of course you are Jeremy Wilson from The Kernel, who claims in his article, “In Defence of Revenge Porn” that no one has a right to a “reasonable expectation of privacy” and that it’s not the law that needs to catch up with technology, but rather people that need to be doing the catching up:
“What they are trying to do instead is regulate the consequences of stupid decisions made by adults: i.e., allowing yourself to be filmed performing sex acts, somehow imagining that the footage or photos won’t ever see the light of day. Well, I’m sorry, but the law’s not here to scrub your life clean of your own bad choices. Yes, that person betrayed your trust. But refusing to accept any responsibility and whining at the state to step in to help you punish him has more chilling effects than just producing laws so useless they’re offensive. In fact, it’s almost immoral,” he said.
Unfortunately, this kind of attitude tends to proliferate ‘victim blaming’ and fails to take into account the growing realities of the ‘sexting culture’ in which we currently live, as Wells explains:
“Women are still being punished for being sexual. There seems to be so many do’s and don’t’s around female sexuality. Revenge porn is a way to shame women who choose to sexually express themselves by asserting these puritanical values,” she said.
Toups can relate: “Being approached in public by complete strangers saying inappropriate things and assuming they know what kind of woman you are and ‘what you want’ is not only shocking but terrifying. There aren't many victims willing to talk about what's happened to them because they've been humiliated…fear has silenced them. The thought of facing even more judgments and consequences from someone else’s actions is overwhelming. But I encourage them to stand up and fight back. You did nothing wrong! The supporters for victims far outweighs the hateful stone throwers,” she said.
As the battle over criminalizing revenge porn continues, California’s efforts to address the issue albeit not perfect do provide other states with the opportunity to tweak their own legislation and rethink our response to the infamous phenomenon that is unlikely to wane as cyber-technology expands.
In the meantime, for those who find themselves the target of online revenge porn, Michelen says the best way to go from victim to aggressor is to remember you have rights in these images. Then again, perhaps a good ol’ fashion kick-in-the-balls is all that’s needed to do the trick, as Olivia Munn’s character Sloan demonstrated in HBO’s ‘The Newsroom’ after falling prey to an act of revenge porn by her ex-boyfriend:
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