Revenge Porn: State Law Issues and Effects

I first learned about revenge porn in 2013 when the news websites I visit started reporting on it.  The term has become more commonplace since then, but I realize not everyone may be familiar with what revenge porn is.  Revenge porn is the posting of nude images of a person online without that person’s consent, typically with the intent to harass and humiliate the person in the photos.  Often the person posting the images is a former partner of the victim, though that’s not always the case.  Many victims have had their images stolen from their online accounts.  The photos are often accompanied by the victim’s personal information, like full name, address, and phone number.  My interest in this subject began when reading the victims’ stories of how this harassment was affecting their lives and how difficult it was for victims to get their photos taken down evoked both feelings of anger and disbelief.  How was it that such an egregious act was going largely unpunished?

Since I first read about revenge porn, states have been scrambling to catch up to this new form of harassment and provide relief for victims.  At this time, 27 states have passed laws prohibiting revenge porn.  However, these laws are not without their problems.  Some state laws have been criticized for not covering enough types of behavior to be effective.  In 2013, California passed a bill that made revenge porn a misdemeanor.  However, critics of the bill questioned its effectiveness because it did not cover “selfies” (or photos the subject had taken of his or herself), redistributors, or hackers, was unclear on how to handle differing opinions on confidentiality of the photos, and required intent to cause emotional harm to the subject of the photos.  California then amended the bill in 2014 to include selfies.  While this was a step in the right direction, considering how common selfies are today, I have doubts as to whether the California bill will cast a wide enough net to prosecute the wrongdoers and deter people from posting revenge porn.

On the other side, Arizona’s revenge porn law was challenged by businesses and the American Civil Liberties Union for being overly broad and encroaching on the First Amendment.  The complaint alleged that Arizona’s law as it stood covered a number of different situations that should not be criminalized and was a burden on bookstores that could not know whether the subjects of photos in books they carry consented to their photo being published.  One example of a situation that would be criminalized was a professor showing during a lecture the “Napalm Girl,” a photograph of a naked young girl running from an attack during the Vietnam War that won a Pulitzer Prize.  The judge later issued a final decree stating that the revenge porn law could not be enforced.

Maybe finding the right language for revenge porn laws can eliminate these issues.  On one hand, a law that is too narrow won’t effect change, and on the other hand, an overly broad law could infringe on First Amendment rights.  The Arizona law is not the only one that may bring about First Amendment issues.  Unfortunately, in order to pass a law prohibiting revenge porn, there will have to be some restriction on free speech.  It is just a matter of whether it is too broad of a restriction.  Perhaps the answer is a federal law written well enough to largely avoid these issues.  That may be on its way.

While there have been some issues with the revenge porn laws that states have passed, that’s not to say that there has been no justice for victims.  Hunter Moore was indicted and plead guilty to federal charges stemming from his revenge porn website, isanyoneup.com.  Moore was paying a man to hack into victims’ email accounts and steal their private photos for his website.

Another man, Kevin Bollaert, was sentenced to 18 years in prison (later reduced to 8 years followed by 10 years mandatory supervision) for identity theft and extortion.  Bollaert was running a revenge porn website where people could upload photos of their former partners and include the victim’s personal information.  He was then demanding money from victims looking to have their photos removed.

While this paragraph may not necessarily deal with revenge porn laws, I think it is a very important topic to touch on when discussing this issue.  When I read about revenge porn online or watch news about it, there is often a comment about the “solution” to the problem: don’t take or share nude photos of yourself.  However, not only is it not that simple, it’s also a victim-blaming mentality and extremely problematic.  It’s similar to telling rape victims that they shouldn’t have dressed in a particular manner, acted a certain way, drank that much, etc.  It places the blame on a person who has done nothing wrong and shifts the blame away from the person who deserves it.  The law review article cited at the end of this post explains how that kind of thinking contributes to gender inequality by shaming women (who are the majority of the victims) for their sexual behavior and maintains outdated ideas of how women should express their sexuality.  I think it’s important to keep in mind that these are people who have done nothing to deserve their private photos being posted on the internet.

While it’s clear that the laws as they stand may need to be amended to have their intended effect, it is good to see some of the worst offenders prosecuted for their harassment of others.  What are your thoughts on the current laws and how this area should be handled from a criminal perspective?

Article cited: Rachel Button, Taking The Sting Out of Revenge Porn: Using Criminal Sanction to Safeguard Sexual Autonomy, 16 Geo. J. Gender & L. 407 (2015).

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~ by meredithmcavoy on October 4, 2015.

9 Responses to “Revenge Porn: State Law Issues and Effects”

  1. When I first learned about revenge porn, I only knew about it insofar as people posting or sending nude images of people for blackmail-ish purposes. However, as time went on and I learned of these online websites that will go so far as to post additional contact information to specifically target these individuals from a global internet platform, I was somehow even more disgusted (though I didn’t think it possible).

    First off, what sort of person goes through such an extreme effort to “get back at someone”. How little does someone have to think of themselves to engage in this behavior? And how little self-esteem must they possess? The fact that this is something in existence is truly unsettling, and I find it to be a cultural stain to which we all must address in some form.

    With that being said, I’ve always taken heed when it comes to the discussion of properly attributing fault for revenge porn to the perpetrators, while still being able to discuss the actions of the victim that contributed to the end result (without placing blame upon them). Overall, I wish these kinds of discussions could be viewed similarly to Comparative Fault. Obviously in these revenge porn cases, the perpetrators are overwhelmingly at fault. However, if there were no nude images in existence, the crime couldn’t have been committed at all. While I do not view this as some sort of reasoning to place blame upon these victimized persons, nonetheless, there needs to be intelligent discourse at methods of prevention.

    Yes, it is incredibly important for us to tackle this issue. No, there will not be a full solution to this problem at any time. In the mean time, ensuring (as best as possible) to not have any nude/suggestive photos of oneself in existence can help ensure that this particular crime does not occur. (This obviously fails to address any non-consensual imagery taken of a person).

    Overall, I find it to be a said state of our society that should this crime be conducted against someone, that they have to face any societal stigma at all. It would be great if friends, family, employers, etc. could respond to these incidents with an “I’m so sorry this happened to you. Don’t sweat it. Let us know if you need help with anything. None of us think any lesser of you.” But alas, we do not live in a perfect world.

  2. Interesting post, Meredith! I have heard of the term revenge porn before and I thought it was just a term for when exes would post shared photographs on the Internet. I had no idea the term also applied to hackers. It really is scary to think that our photos, especially those stored on clouds, can be easily hacked. What also worries me is the fact that not only photographs were being shared by hackers, but also identifying information such as addresses and phone numbers, too.

    I am having a hard time seeing the First Amendment issues with this topic. I understand maybe Arizona’s law may appear too broad, however, I think people’s concerns are premature. The purpose of these revenge porn laws doesn’t seem to be to limit speech, but to protect people’s expectation of privacy. Similar to our discussion about social media in criminal proceedings, I think people have a reasonable expectation of privacy when it comes to the messages they send to another person whether it be by text, email or direct message on a social media website.

    The article Meredith linked about the new proposed bill making revenge porn a federal crime was very interesting. The article discussed how websites publishing content provided by third parties would be immune from criminal sanctions because they wouldn’t have known the photos were collected without the consent of the person in the photo. I think that same argument could be applied to those who are concerned about First Amendment violations- only those with actual knowledge that the photos were being shared without consent should be punished. I think this topic is very interesting and I look forward to our class discussion this week. Nice job, Meredith!

  3. I would disagree with the idea of comparative fault being used to determine liability when it comes to revenge porn. I don’t necessarily believe advocating such a system means there is intent to blame the victim, but a victim would certainly not see it that way. Also, it seems like it would be somewhat problematic to assess damages upon a victim for a crime committed against the victim. It essentially punishes someone for entering into a consensual agreement between two individuals.

    The ideal solution would seem to me to be narrowly drawn legislation, but as Meredith detailed in her post arriving at such a solution is much easier said than done.

    Even the New Jersey statute, which seems to have worked in some cases (and unfortunately a former Gator engaged in this conduct and was charged under the statute in Jermaine Cunningham as our reading told us) could be adjusted. It would seem to clearly cover hackers as no “reasonable” person could expect an unknown party to obtain privately taken pictures. It would also seem to cover the “jilted ex-lover” perpetrator as under subsection (c).

    As a former journalist, I understand the importance of the First Amendment concerns, but I just do not think it is an insurmountable task to find statutory language which adequately addresses such concerns. As a way to distinguish a photo such as “Napalm girl” from privately taken photographs, language can be used in the statute which specifies that it is not addressing photographs taken in a public place. Something simple like this would provide news gatherers with the freedom to publish material that is newsworthy, public and would be prohibited under the current broader legislation without fear of prosecution but protect those who in a private place take the photographs that when published meet the criteria for revenge porn.

  4. Contrary to the poster above, I don’t think there should be any kind of comparative fault. I vehemently reject the position that people should be held at fault of any kind for being a consenting adult in a situation. If a couple wants to send each other pictures, that is their right. Who are we to say that they should not do it because maybe a crime could be committed with them? I am pretty bothered by that idea. Consenting adults should not be constrained in their every day life because of what others are doing. That is not the solution, legally, in order to protect those who have been wronged. It is not up to the law to decide whether or not something is worth the risk for another individual. It’s another form of victim blaming like Meredith said above.

    The CDA probably presents an issue here, right? We want to have this open internet but then don’t want to hold the operators liable for what the content producers do. It’s too difficult to monitor. Also, this issue gets complicated by copyright issues too. If the victim did not take the photo of themselves then the person who took the photo has a copyright in that photo, I think. Things are a bit easier with selfies since the opposite is true, but this is a confusing area of law.

    I’m glad Hunter Moore etc have been prosecuted and taken down. What they are doing isn’t right and is not something people should be profiting off. I do think this should be a federal issue and not a state issue, I’m glad you linked that above.

    I look forward to the discussion in class.

  5. I have to agree with Josh and Anthony in that i completely disagree with the idea of comparative fault in this situation. The person whose picture is posted is supposed to be the victim. The crime was committed against that person so I don’t see how we can make someone a perpetrator and a victim in the same instance. I definitely agree with Meredith that it is victim blaming.

    As far as the first amendment goes.. I do think it’s possible to find appropriate language for a statute. It is important to distinguish between a private photograph and one that the individual intends to be viewed publicly. If a photograph is taken privately and intended for one person only, that person does not have a first amendment to turn around and post it. I was absolutely blown away when I read about Hunter Moore. I was not aware that that type of behavior was considered revenge porn. I can’t imagine how devastating those women must have been. Your email account is definitely private enough for someone to have an expectation of privacy.

  6. When I hear the term revenge porn, I automatically assume it has to do with people breaking up and somehow trying to punish or embarrass each other. I also didn’t realize this term applied to hackers like Christina mentioned above.

    Reading everyone’s comments made me take two different positions. I don’t believe in punishing the victim because they are the ones going through this devastating and difficult ordeal. I am sure that when they were sending or taking these photographs they never intended for their photo to be made public. However, I am inclined to agree with Will. I am not saying that it is necessarily the victims fault but I don’t see the point in taking these photographs in the first place. Technology is constantly evolving and many fall victim to the hands of hackers because they are getting more clever. I am not 100% agreeing with the comparative fault argument but at the same time I am not disagreeing with it. I feel very conflicted with this topic. I realize that people have a reasonable expectation of privacy but at the same time I think people need to be more aware about what they post and share.

    I don’t really see how this problem could be fixed in its entirety to be honest. I think people need to be careful with what they post and perhaps be more private in how they conduct themselves. I think it is not okay to place blame on the victim but at the same time had the photo not been taken to begin with then they wouldn’t be in the predicament that they are in.

  7. I completely agree with Josh, Anthony, and Brittany, a comparative fast the punishment or fault scheme is unacceptable. The images that are being discussed are not images that were posted to any social networking sight or shared to many people. These are images that are from one individual to another, taken in private, and it is known that they are to remain private. To suggest a comparative fault is very much victim blaming. It cannot be cast in any other light.

    I do not believe that it will be that difficult to write a statute that protects the individuals from their private images being made public. The statute has to address those images taken in private setting that are clearly meant to stay private. I do not know if a reasonable man standard would work here but I feel like it is a common sense issue. The perpetrators of these crimes know what they are doing is against the wishes of those depicted in the images or film, I do not believe this is hard to criminalize.

  8. After reading about revenge porn, I was surprised to learn that the majority of the posts are not of exes but instead random persons and that people are attempting to profit from these images by extorting those depicted. To me, I see two crimes, first being the intrusion and unwelcome disclosure of private images. The second is extorting the victim or attempting to profit in anyway from the intrusion (ie not just extortion but having a site that generates ad revenue based on the instrusions).

    While I am offended by the prospect of revenge porn, I distinguish it from CP in the sense that children are not involved and as an adult the argument of “don’t take any pictures you don’t want out there” carries more weight than in the instance when children are involved.

    I don’t think comparative fault sounds like a good idea personally in the criminal context and I’m not even sure what that would look like. I think that the intrusion is actionable by the victim using tort theory, but I don’t think it should mitigate criminal charges just because a victim consented to the photo being taken.

    Some questions I have about these issues are: Who owns the images? Did the discloser have the owner’s permission? Can two people own one image? Maybe there could be some way that image owners could ensure the image cannot be forwarded, duplicated, or printed.

    But perhaps the Comparative Fault suggestion points toward a more realistic solution – perhaps with revenge porn, unlike child porn, there is no need to criminalize it. Rather, Tort and Property theories should be used to make those intruded upon whole. If a couple revenge porn posters end up getting hit with huge judgments that benefit those intruded upon, I think the deterrent effect would be much greater. Indeed someone that would engage in such an intrusion is not so much a criminal that should do time as much as they are an antagonistic coward that should be compelled to make the person intruded upon whole.

  9. Quite an interesting discussion. I can tell this week’s class will be lively! Thank you Meridith for bringing this issue to our attention with a great post. I do think one has to be careful about assessing fault to the person (woman) whose privacy was invaded. We are not talking about tort liability in this class, we are discussing criminal sanctions. In criminal matters, the law (based on cultural and social values) leans towards excusing or explaining bad conduct on the part of male defendants by shifting focus to the behavior of women who are the targets of the bad behavior. We do this in the context of sexual assaults and domestic and/or intimate violence. The law is still trying to reform its tendency to make this shift. It is one thing to say there needs to be education about the propriety of sharing nude photos (education is needed) but that is vastly different from excusing behavior based on the defendant having received photos from the person whose privacy is then invaded.

    In class, let’s talk about the freedom of speech issue. Why are there allegations that the revenge porn statutes would violate freedom of speech? Can you see why the Arizona law presented a problem?

    There definitely are some IP issues involved. Does the holder of the image have a copyright interest in it, particularly if he or she took the photo?

    Could some of the language problems be ameliorated if the laws focused more strongly on the mental state of the defendant when he posts the photos?

    I look forward to seeing you in class.

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