Social Harms on the Internet: Sextortion, Revenge Porn, and Catfishing

Technology has become an integral part of our everyday lives. Technology is present at work, at home, at the grocery store, and even in our personal relationships. There is no surprise that the presence of internet has transformed our private lives into being more public. But, for some people, the internet has been used to invite the public into the most private parts of life, or has been used to launch unwarranted character attacks. While most of these crimes existed before technology, the internet has changed the way that crimes are committed and how large of an audience the crime reaches.

Sextortion technically is not a legal term, but it describes “old-fashioned extortion or blackmail, carried out over a computer network, involving some threat…if the victim does not engage in some form of further sexual activity.”[1]  These cases usually involve hackers who target their victims by obtaining sexual images or videos to use as leverage to get what they want. [2] These hackers typically target several victims and the victims tend to be women or people under eighteen years old. [3] For example, Luis Mijangos victimized about 230 people by tricking them into downloading malware on their computer and then using that malware to access all of their files. [4] He would obtain images or videos of the victim and then email them demanding more pornographic material of the victim and threaten to post the images or videos online if the demands were not met. [5] He used the key logger to track everything the victim typed and he would threaten the victims further if he found out they were talking to anyone about the situation. [6]

Since sextortion is a relatively new crime, there are few laws that directly criminalize the behavior. Defendants are commonly prosecuted under crimes such as hacking, stalking, extortion, or child pornography. [7] This lack of specific laws also leads to inconsistent sentencing. [8] When the defendants are prosecuted under child pornography statutes, then they receive pretty stiff sentences. [9] But when they are prosecuted under other statutes, the sentences are much lighter. Luis Mijangos, for example, was only sentenced to six years despite the fact that he had “15,000 webcam-video captures, 900 audio recordings, and 13,000 screen captures on his computers…possessed files associated with 129 computers and roughly 230 people…and 44 of his victims were determined to be minors.” [10]

While the goal of sextortion is to obtain something (usually sexual images of the victim), non-consensual pornography (NCP) is another crime that harasses victims with sexual images for the mere sake of vengeance. [11] NCP is more commonly known as revenge porn. [12] NCP is “the act of distributing sexually explicit photos or videos over the Internet without the subject’s consent and with the intent to embarrass or shame the subject.” [13] This is commonly committed by jilted exes but can also be done by hackers. [14] There have been websites created just for this purpose that allow the user to also include personal information such as the victim’s name, social media profiles, or job. [15]

It is difficult for justice to be served for the victims of NCP. Victims cannot go after the website because, as distasteful and immoral as they are, the websites are protected by Section 203 of the Communications Decency Act. [16] Section 230 protects website providers from liability for user-posted content. [17] So, the CEOs of these websites cannot be prosecuted just because user Joe Schmo posted a sexual photo of his ex-girlfriend and included her name and workplace so that people could go harass her at work. The only way around Section 230 protection is if the website provider contributes to the post by editing or adding content. [18] Otherwise, the only person to prosecute is the user and laws against NCP are still in the trial-and-error phase of legislation in most states.

Some states have attempted to criminalize the behavior. Vermont passed a bill that penalizes someone with up to two years in prison and a $2,000 fine for posting sexually explicit photos of a person without consent. [19] The bill included language about requires the defendant to have intended to harm the victim and for a reasonable person to suffer harm because of the disclosure. [20]. The bill will hopefully punish the behavior without being overbroad. California laws attempt to encompass NCP under the cyber harassment statute. According to California Penal Code Section 653.2(a), it is illegal for a person to “inten[d] to place another person in reasonable fear for his or her safety…by means of an electronic communication device, and without consent of the other person, [and] electronically distributes, publishes, e-mails, hyperlinks, or makes available for downloading, personal identifying information, including, but not limited to, a digital image.” [21] The California law is likely to successfully criminalize the behavior because it is specific about the crime and intent without being too narrow. NCP laws in New Jersey, Idaho, and Wisconsin do not include the element of intent. [22] Therefore, the laws are restricting this content of the material posted rather than the defendant’s state of mind. [23] This is a problem because restricting content skirts the line of infringing on a person’s First Amendment rights.

Victims might have better luck in state court filing claims of intentional infliction of emotional distress, invasion of privacy, sexual harassment, or copyright infringement, depending on the facts of their case. [24] However, these claims are not always easy to win and even if the victim is awarded a judgment, the defendant might not have the ability to pay. At that point, the victim has gone through the emotional struggle of being harassed, the stress of a court case, and fronted the money for a lawyer to fight the case only to win a judgment that will never be paid out. Going to court also requires the victim to confront the issue head on and continue publicizing the information and the ordeal. Some victims are already so embarrassed by the defendant’s actions that they do not want to go through the anguish any longer. So, even though there are avenues in civil court for victims to take, there are plenty of reasons that someone might not see those as viable options. [25]

Imagine, you meet someone online, his or her social media page doesn’t raise and red flags to you and so you start chatting. Soon you have fallen for this person and you want to meet in real life. But, every time you plan to meet, this person bails at the last minute. Eventually you get suspicious and start researching this person a little more. Come to find out, this person is a total fake who stole some model’s photos and your whole relationship was built on lies. Congratulations, you have been catfished. Catfishing is another crime that has recently become more popular. The legal term for catfishing is online impersonation. [26] Online impersonation occurs when someone creates a fake online profile to deceive others, usually to bait the victim into a romantic relationship. [27] These relationships can result in a fake online relationship or cyberbullying, so legislation must be clear. [28] Unfortunately, social media websites are not required to verify identity of its users before a profile is created. [29] Sites like Facebook include prohibit online impersonation in their Terms and Conditions and provides users with the ability to report issues of online impersonation. But, this is all that they are required to do. [30] Many states are endeavoring to enact laws against online impersonation, but none have been passed and analyzed over time yet.

These social harms that are inflicted on the internet are becoming more and more prevalent. The states and federal government need to enact legislation to appropriately deal with the new behaviors. The biggest problem with enacting legislation to combat internet or technology crimes is that technology is always changing, so it is difficult to be proactive rather than reactive. There will always be a new behavior that victimizes people through the internet. Hopefully, the government can find ways to keep up with technological advances to prevent social harms from escalating too far.

 

  1. How do you think sextortion should be criminalized and prosecuted more consistently?
  2. Should Section 230 be amended to be narrower? If so, how should it be amended?
  3. Should these crimes all be criminalized or is it best for social harms to be left to civil court?
  4. Aside from criminal charges or civil complaints against the perpetrator, should there be any other recourse for victims?

 

[1] https://www.brookings.edu/research/sextortion-cybersecurity-teenagers-and-remote-sexual-assault/.

[2] https://www.brookings.edu/research/sextortion-cybersecurity-teenagers-and-remote-sexual-assault/.

[3] https://www.brookings.edu/research/sextortion-cybersecurity-teenagers-and-remote-sexual-assault/.

[4] https://www.brookings.edu/research/sextortion-cybersecurity-teenagers-and-remote-sexual-assault/.

[5] https://www.brookings.edu/research/sextortion-cybersecurity-teenagers-and-remote-sexual-assault/.

[6] https://www.brookings.edu/research/sextortion-cybersecurity-teenagers-and-remote-sexual-assault/.

[7] https://www.brookings.edu/research/sextortion-cybersecurity-teenagers-and-remote-sexual-assault/.

[8] https://www.brookings.edu/research/sextortion-cybersecurity-teenagers-and-remote-sexual-assault/.

[9] https://www.brookings.edu/research/sextortion-cybersecurity-teenagers-and-remote-sexual-assault/.

[10] https://www.brookings.edu/research/sextortion-cybersecurity-teenagers-and-remote-sexual-assault/.

[11] Emily Poole, Fighting Back Against Non-Consensual Pornography, 49 U.S.F. L. Rev. 181.

[12] Emily Poole, Fighting Back Against Non-Consensual Pornography, 49 U.S.F. L. Rev. 181.

[13] Emily Poole, Fighting Back Against Non-Consensual Pornography, 49 U.S.F. L. Rev. 181.

[14] Emily Poole, Fighting Back Against Non-Consensual Pornography, 49 U.S.F. L. Rev. 181.

[15] Emily Poole, Fighting Back Against Non-Consensual Pornography, 49 U.S.F. L. Rev. 181.

[16] https://www.law.cornell.edu/uscode/text/47/230.

[17] https://www.law.cornell.edu/uscode/text/47/230.

[18] Emily Poole, Fighting Back Against Non-Consensual Pornography, 49 U.S.F. L. Rev. 181.

[19] http://legislature.vermont.gov/bill/status/2016/H.105.

[20] http://vtdigger.org/2015/04/23/senate-passes-revenge-porn-bill/.

[21] http://www.internetlawyer-blog.com/2011/12/california-online-harassment-laws.html.

[22] Emily Poole, Fighting Back Against Non-Consensual Pornography, 49 U.S.F. L. Rev. 181.

[23] Emily Poole, Fighting Back Against Non-Consensual Pornography, 49 U.S.F. L. Rev. 181.

[24] Emily Poole, Fighting Back Against Non-Consensual Pornography, 49 U.S.F. L. Rev. 181.

[25] Emily Poole, Fighting Back Against Non-Consensual Pornography, 49 U.S.F. L. Rev. 181.

[26]  Kori Clanton, We Are Not Who We Pretend To Be: ODR Alternatives to Online Impersonation Statutes, 16 Cardozo J. Conflict Resol. 323.

[27]  Kori Clanton, We Are Not Who We Pretend To Be: ODR Alternatives to Online Impersonation Statutes, 16 Cardozo J. Conflict Resol. 323.

[28]  Kori Clanton, We Are Not Who We Pretend To Be: ODR Alternatives to Online Impersonation Statutes, 16 Cardozo J. Conflict Resol. 323.

[29]  Kori Clanton, We Are Not Who We Pretend To Be: ODR Alternatives to Online Impersonation Statutes, 16 Cardozo J. Conflict Resol. 323.

[30]  Kori Clanton, We Are Not Who We Pretend To Be: ODR Alternatives to Online Impersonation Statutes, 16 Cardozo J. Conflict Resol. 323.

 

Advertisements

~ by brianazupko on November 14, 2016.

10 Responses to “Social Harms on the Internet: Sextortion, Revenge Porn, and Catfishing”

  1. Sextortion should be criminalized and perpetrators should be charged with a felony. If a perpetrator is merely charged with a misdemeanor, several roadblocks pop-up for prosecutors in trying to obtain the necessary evidence needed to show who posted the images. [1]. Classifying non-consensual pornography as a sex offense allows for states (this is a law coming out of Arizona) to penalize the action of putting the pornographic image online without taking intent into account. [1]. More states should follow Arizona’s lead and in turn make a prosecutor’s job that much easier in hunting down a sextortion offender. There should also be a unified law on how to deal with perpetrators across borders just like the Istanbul Convention becoming binding in European countries. [4].

    Section 230 should be amended to be narrower. If legislatures can include knowledge on the part of the CEO(s) running the website, then it should be more likely that such websites will pop up less often. It may be difficult to prove that a CEO was aware of the material posted on his or her website by the usually anonymous user, but at the same time, how can we expect a CEO to not know the material that is being posted on his or her website? If it is possible to show that a CEO knew or should have known that illegal content was being posted on his or her website, then the CEO should share in the liability.

    The crimes of and related to sextortion should all be criminalized. Hopefully the criminalization of these crimes would help in deterring people from extorting or embarrassing potential victims. It is common for a sextortion offender to have communicated with hundreds of potential victims throughout the course of his extortion. [2]. When the punishments outweigh the gains, there may be less victims out there, which means less victims to have to experience what Amanda Todd was put through. [2].

    The mark these crimes leave on its victims is tremendous, ranging anywhere from trouble concentrating and appetite loss to a desire to be alone. [3]. The victims suffer for a lifetime. Criminalizing these crimes would better protect potential victims from the trauma of going through an ordeal of being extorted.

    [1] http://www.csmonitor.com/USA/Politics/2014/0501/Revenge-porn-With-Arizona-10-states-now-outlaw-such-postings
    [2] https://www.washingtonpost.com/news/true-crime/wp/2016/05/10/sextortion-growing-online-problem-worldwide-victimizes-two-george-mason-students/
    [3] https://www.brookings.edu/research/sextortion-cybersecurity-teenagers-and-remote-sexual-assault/
    [4] http://www.newsweek.com/2014/08/22/how-law-standing-cyberstalking-264251.html

  2. To criminalize and prosecute people who participate in sextortion, I think it would be beneficial to directly criminalize it by a specific statute or amending a statute explicitly criminalizing sextortion and other online sex crimes. I think this would assist with the issue of figuring out what law to prosecute the crime under and would result in more consistent sentencing.

    I think website providers should not only be held liable if the provider contributes to editing or adding content to the post. I think website providers who have reasonable notice that content involving NCP, should have a duty to investigate, and remove such content if confirmed or at least have the duty to report it to the proper authorities. I think this would put pressure on website providers to take a more proactive approach to prevent these crimes from occurring.

    I think these crimes should be criminalized because of the possible affect or harm to the victims of these crimes. As the blog mentioned, trying to litigate these incidences in civil court is not necessarily easy to do and subjects the victim to harassment and stress from litigation. Further, the victims may not be able to afford to litigate the issue in civil court and even if a judgment is granted, the defendant might not have the funds to pay the victim.

    Besides criminal charges and civil complaints, I am not sure what else there could be as recourse for the victims. I think we do have to focus research from a sociological and psychological aspect to educate ourselves more on the affects of these crimes and how to help victims cope with the resulting issues. Further, I would like website providers and social media companies take a bigger stand on raising awareness of these crimes and educate its users on how to avoid becoming a victim as well as warning those who do commit these crimes could be held criminally and civally liable.

  3. It is clear from the blog post and from the data that sextortion is a cruel crime that ruins lives and scars victims, many of them children. It is an epidemic, with complaints of sextortion rising 32% in the last three years. [1]. In particular, the number of child victims is increasing and the average age of these victims is decreasing, in large part due to children accessing the web for the first time at a younger age than recent generations. [2].

    The effects can be extremely harmful, and they are often indelible. Studies have consistently found that victims suffer severe and lasting psychological damage, including disruptions to their sexual development, difficulty trusting, symptoms of post-traumatic stress and suicidal tendencies. [3]. One study found that as many as 28% of sextortion cases involved an attempted suicide. [4]. Further, victims suffer disruptions to other aspects of their life such as schoolwork, leading some to dropout. [5].

    What’s more, perpetrators are coordinating with each other and they are well-organized. Among They create handbooks on how to sextort, they pay networks of sexstortioners on commission for sextorting pornography, and they develop communities that lure pedophiles and encourage them to pursue children. [6]. For example, a recent DOJ investigation revealed three live-streaming sites that were designed entirely to entice minors to provide sexually explicit content. [7]. It is concerning to imagine perpetrators such as Mijangos victimizing 230 people, let alone several sophisticated criminals like Mijangos conspiring to sexstort. However, this is rapidly becoming reality. Those committing sexstortion appear to be similar to Mijangos in the degree of their activities and one study found 13 cases where a perpetrator victimized at least 20 people. [8].

    It is with this background that I base my strong belief that we need more state statutes to specifically address sexstortion. As one author suggested, a specific statute that criminalizes the posting online of sexually demeaning pictures without consent. [9]. However, this should be taken further to also include specifically criminalizing sexstortion. Catfishing with the intent to sexstort should also be criminalized, as manipulation of social media is present in almost all cases of sexstortion. [10]. Finally, there should be a crime for conspiracy to commit sexstortion, to address the organization of the sexstortioners and those who promote their activities by patronizing their content. Given the damage sexstortion has on society, outlined above, felony penalties would not be too great, and they are much more likely to deter than a misdemeanor. [11].

    There will certainly be some backlash and some legal challenges. For one a state conspiracy crime must be careful to avoid targeting ISP’s in violation of Section 230. As a buffer, I would suggest narrowing 230 to allow for prosecution in the case of willful blindness. That way, ISP’s in wanton disregard of the presence of criminal activity on their page could face charges, and larger ISP’s like Google would be conscripted into doing their fair share of policing this activity.

    There is also the issue of unduly restricting the First Amendment and the possibility that these laws will result in harsh sentences for teen sexting. First Amendment advocates stress that these kinds of laws tend to cabin free speech, [12] and they are right to some extent. I would argue that laws specifically targeting sexstortion more address the scienter of the perpetrator in their attempt to promote their own agenda at the expense of others, sometimes even to the point reveling in the victim’s suffering. [13]. Thus, the crimes are more in line with sexual assault than with censorship. This reasoning also allows for similar statutes to target NCP, though the punishment there should be less severe where there is no specific intent to harm the victim.

    Current civil causes of action appear to work, at least as the blog very correctly points out, where the tortfeasor is solvent. Sexstortion may have developed to the point where there is a recognized and well understood pattern in extreme cases, but fringe cases may be too close to fairly determine on a preponderance standard, thus I am not as enthusiastic about a specific civil cause of action for sexstortion.

    With the understanding that victims are often tormented by the thought that their pictures remain in circulation online, a successful prosecution of the sexstortionist can go a long way toward giving a victim closure and helping them to regain a sense of control. [14]. States should thus make the attempt to punish sexstortion and NCP. Federal statutes would also do a lot for prosecutors, but they may take longer to develop and many more could be victimized in the interim.

    [1] https://www.washingtonpost.com/news/true-crime/wp/2016/05/10/sextortion-growing-online-problem-worldwide-victimizes-two-george-mason-students/
    [2] https://www.justice.gov/psc/file/842411/download, at 144.
    [3] See Id. at 75; Supra footnote 1; http://www.newsweek.com/2014/08/22/how-law-standing-cyberstalking-264251.html, at STALKING ACROSS BOARDERS. Due to the inability to remove pictures from circulation on the internet, many victims are continuously haunted by the humiliating reminder of their victimization, and this works to perpetuates symptoms. Supra footnote 2, at 72.
    [4] Supra footnote 1.
    [5] Supra footnote 2, at 75.
    [6] Id.
    [7] Supra footnote 2, at 75.
    [8] https://www.brookings.edu/research/sextortion-cybersecurity-teenagers-and-remote-sexual-assault/, at our key findings include.
    [9] http://www.newsweek.com/2014/08/22/how-law-standing-cyberstalking-264251.html
    [10] Supra footnote 8, at The Data in Aggregate.
    [11] http://www.csmonitor.com/USA/Politics/2014/0501/Revenge-porn-With-Arizona-10-states-now-outlaw-such-postings
    [12] Id.
    [13] Supra footnote 8, at our key findings include.
    [14] Supra footnote 2, at 72.

  4. Sextortion and Revenge porn should be a felony. It is a growing treat to children and the damage is long lasting. It is ridiculous that the crime is prosecuted currently in many jurisdiction under crimes that carry lesser penalty. The criminal is not only harassing another person at the moment but he is creating a permanent, public record of the most private pictures of another. Every time a user views or downloads that picture, the victims’ dignity is violated. Studies shown that this can lead to depression, PTSD, and even suicide. Additionally, I believe it should carry heavier penalties. How can someone like Mijanos who violated hundreds of people around the world be free after six years again? He ruined the live of so many innocent victims.

    If those crimes would be prosecuted more consistently, a lot more victims would step forward. It would shift the victim blaming for creating such pictures in the first place to the criminal who without consent distributes such pictures.

    Also, I do not believe that the intent to cause emotional distress should be a deciding factor. The mere act of distribution should be punishable. Prohibiting a person to share another person’s sexually explicit picture should not be considered is a violation of one’s freedom of speech. If they feel that strongly about sharing naked pictures online, they can share pictures of themselves. This is pure exploitation of another. There mere act of exploiting someone in that manner should be enough for a severe punishment.

    I don’t think that only punishing the crimes civilly is sufficient. We need to send a strong message to people that such behavior is not okay. Additionally, more international treaties should to be created to combat the crime effectively.

    The Communication Decency Act needs to be amended. Right now, people who create the platforms to allow such distribution can hide behind laws. They are exploiting woman and children all around the world. The administrator of a revenge porn site should be held liable for allowing such content such like the third parties who add the content should be held liable.

    It would be very helpful for victims to have online reporting system like they have in the UK. Victims might be more likely to step forward if it is more convenient for them to report the crime in a fast manner. Also, 71% of the victims are minors, we should implement programs in schools and youth centers to help victims cope with such trauma.

  5. 1. Similar to the dilemma I described in my post regarding the criminalization of online human trafficking, I believe that a stand-alone federal criminal statute should exist and should be passed in conjunction with an amendment to the CDA that would allow states and localities to pursue those who engage in this conduct. It is clear that sextortion is fraudulent behavior that can deeply wound an individual – it should be criminalized clearly and unapologetically to send the message that it is unacceptable behavior.
    2. It should be amended and the way that it could be amended is to allow localities and states to prosecute defendants for crimes on a state level that have equivalents at the federal level. This would ensure that such crimes do not slip through the cracks simply because of jurisdictional issues.
    3. I believe that sextortion and non-consensual pornography should unquestionably be criminalized behavior – I am less certain as far as catfishing is concerned. While part of me understands the harm that catfishing can create, it is hard to ignore the fact that there is a clear difference here – sextortion occurs under great duress imposed by the defendant, non-consensual pornography is often the result of once existing consent that allowed a defendant to have pornography that the defendant then used to intentionally harm the victim; catfishing however involves a situation where consent to contact exists – it is voluntary. We all understand that when we engage with people on the internet that there is no telling what that contact could lead to, that is a basic premise of internet use as simple as “don’t talk to strangers” once was to us. Catfishing, to me, seems as if it is the result of a sadistic person taking advantage of someone who often does not take enough caution to protect himself or herself as well. This does not make the victim any less a victim and perhaps this behavior should still be criminalized, but I do not believe it is as morally reprehensible as sextortion and NCP (even if it is still awful).
    4. I am unsure other than to say that victims should be able to have a user blacklisted from internet use in any case, to the extent that it is possible.

  6. 1. In my opinion there should be a federal law making sextortion a felony. Sextortion involves the blackmailing of victims to get either money or more pornographic images from the victims. This is a very serious crime and i believe the amount of work and the specific skills necessary to perform these sextortion actions should lead to harsher punishments for offenders. The blog post stated that there are harsh punishments when the victim is a minor which is good but that needs to be extended to all victims of sextortion. Not only are these offenders threatening to publish private personal information or pornographic images of the victim they are instilling fear into the victims and causing serious psychological harm. Since the attacks can come from anywhere over the internet the law needs to cover incidents across state lines.
    2. I don’t think section 230 can be amended without violating the first amendment rights of the website operators. Making websites liable for NCP sounds like a good idea on paper and could potentially stop a large number of NCP from happening so if it can be made narrow enough to not violate the first amendment i think it is a good idea.
    3. I definitely think these crimes should have both criminal and civil penalties. As stated in the blog if only civil remedies were available than victims may be awarded a judgement that can never be paid. Also i believe criminal penalties are necessary given the nature of the crime and the intent of the offenders to do harm. A lot of these crimes are committed by predators who have extensive technological knowledge that puts them in an unfair position of power when using the internet and therefore their abuse of that power should be punished more harshly.
    4. I think that a total internet ban for offenders of sextortion and PNC could be another useful recourse for victims, it something like that is even possible.

  7. I do not think sextortion should be criminalized, because there are existing criminal laws that can be used to punish those that engage in the crime and deter those considering it. As you mention, this activity is already punishable by extortion laws and may, in certain circumstances, include charges of hacking, stalking, or child pornography.

    Over all, I think our legislatures to often jump to the conclusion that we need to create new laws for the virtual age, but forget that many of our existing laws are applicable in the virtual context. In my opinion, there is no need to criminalize sextortion when extortion is already a crime whether committed online, through the mail, or in person. I fear that creating an additional category of crimes could lead to 1) double jeopardy-esque issues were someone is “over-charged” under multiple criminal statutes for the same event, 2) even more inconsistent sentencing where people who committed crimes online receive sentences incongruent to those who commit similar crimes in person, and a number of other possible issues.

    I also do not believe Section 230 should be amended, as I am a proponent of ISP protections for First Amendment reasons. In my view, the internet is a public forum for speech. Forcing those forums to monitor, remove, and punish certain types of speech is unduly burdensome, would lead to overly broad enforcement, and a number of other constitutional issues. We do not force universities to monitor, remove, and punish certain types of speech in free speech zones or in class rooms. We do not force cities to monitor, remove, and punish certain types of speech in public spaces. Instead, we protect speech from government restriction, and allow the private market to set their own restrictions. Websites may restrict speech further than the government can, and if the users agree with those restrictions they will use the site, but if not they will find another online forum to frequent. The same goes for speech in person. Students attend universities where they feel free to make their voice heard (while also feel protected from voices they do not want to hear to varying extents.) If students want absolute free speech, they will attend schools that do not restrict speech beyond what the law sets forth (or they will request the school ease restrictions.) Whereas students who believe things like hate speech need to be banned will attend schools that enforce restrictions beyond the law. But that is why it is important for the government not to force further regulations. Only without ISP liability can forums offer varying levels of protection or freedom for speech – and users can then find a site where they feel most comfortable. If you amend Section 230 to allow ISP liability, then those websites will be forced to regulate the speech on their sites, and the degree to which sites can offer varying levels of protection or freedom for speech will be severely restricted.

    A similar analysis could apply to catfishing, which I do not believe should be criminalized. There are many scenarios where free speech activity could be undeservingly punished under catfishing laws. Some people engage in online role playing sites where they create accounts like celebrities or characters from media and interact with each other in that alternative universe. Those users, for example, could be punished under these laws. Yet, if those people were doing the same thing in person, it would be called acting and it would be completely legal. While it could be easy to create an exception in a catfishing law for such roleplaying sites, I think such a law would restrict speech and would punish behaviors that we can not yet foresee. We do not know what ways people may use false or anonymous identities online in the future, and many of those ways do not deserve to be punished. Instead, we should rely on websites to regulate that activity. Some sites, like Facebook, where you expect the person to be who they say they are will include guidelines and provisions in their terms of service that prevent users from using false or anonymous identities. Whereas sites, like reddit, that recognize the importance of less restrictions on speech in some scenarios will include guidelines and provisions that either allow or promote the use of anonymous identities. And other sites, like roleplaying sites, will include guidles or provisions in their terms of serive that allow or require false identities – because that is what roleplaying requires or because of some other benefit or reason. We should allow sites to regulate speech as they see fit, so long as they do not promote overtly illicit activity like identity theft, child pornography, or other obviously immoral acts.

    One such immoral act that I think should be criminalized in NCP. As far as I know there is no applicable laws to punish NCP (except in circumstances where someone uploads NCP of a child or does so to extort the subject of the film.) In most NCP scenarios, however, the poster uploads the film to shame or embarrass the subject or because they get some personal sexual satisfaction out of posting another person’s sexual material online. In such scenarios where children and extortion are not involved, I can not think of any applicable existing laws. I believe this activity is culpable and should be punished because it is non-consensual sexual activity – and we punish other types of non-consensual sexual activity that is committed in person. That being said, I believe NCP laws should be limited to truly non-consensual sexual material. By that, I mean only in instances where the person did not know they were being recorded. In my opinion, someone who knows they are being recorded implicitly consents to that material being shown to other people, even if they do not explicitly consent to the distribution of that material. In other words, if you bring a camera in the bedroom, you can expect that material to be shown outside of it. Of course, I do not personally agree that you should show sexual material outside of the bedroom if you made it for consensual personal use. But, while I would never do it, I don’t think people should be punished for posting material that was recorded consensually. I believe this, in part and mostly, because it is easier to more definitely determine whether someone consented to the recording, whereas it is harder to determine in a court of law whether someone consented to the posting. (Looking into the camera or talking to it for example shows consent whereas a person that is seemingly unaware that they are being recorded would be evidence of non-consent for the recording. However, proving consent or non-consent of posting approval would be much harder.) In order to prevent unjust scenarios where someone consents to a posting but then files charges for whatever reason and claims the posting was non-consensual, I believe the non-consent requirement should apply to the recording and not the posting. This would prevent people from being punished because their sexual partner became vengeful.

    I would also be hesitant to create new civil laws that allow people to be redressed for their injuries caused by revenge porn posters, catfishers, or sextortionists, because I believe many existing civil laws can be used to seek compensation for those harms. A very similar analysis applies here as it does to the criminal laws. People should not be over-punished for their activities by being sued on multiple claims for the same act, when fewer (or one) claim(s) would suffice. Only in those circumstances where no existing claims exist should a new law be created.

  8. Sextortion crimes should be prosecuted similarly to crimes of extortion, as sextortion is literally just a variation of extortion. Although the sentences are harsher if prosecuted under child pornography, I think that crimes relegated to the issue of child prostitution should be legitimate child prostitution issues. Therefore, if the sextortion does not involve a minor, then the crime should not be prosecuted as child pornography. There should also be systems in place to make the consequences of extortion crimes involving acts of a sexual nature much harsher than crimes involving regular extortion, only because there is a societal/ethical and reputational aspect along with extortion crimes involving sex. Regular extortion, which involves typically only financial damage, is definitely legitimate. But you can (in most cases) always make that money back, or at least be made whole again financially by the court. It is much difficult, however, to make someone whole again when a loss of reputation is concerned. And you cant put a monetary amount on someone’s values and reputation.

    I believe a huge issue with this topic is this Section 230. I think it’s way too broad and does not put enough onus on the publisher of the actual website for activities on its website. Although there is some merit to the argument that the publisher of the website is actually not placing any content on the website, there is the argument to be made that the publisher has actual control over its website. So even if they are not placing the content on the site, they are able to view the site and monitor the site to see what content is actually being placed on the site. If a publisher has the power to monitor their site, they should also have the power to control what is placed on their site, in essence, they should be able to block certain information, certain users, or certain content. After all, it is the publishers website even though third parties are allowed to place their own content on the site.

    I think that the best remedy for situations involving these issues is through the civil route. However, I would again reiterate that these types of social crimes should have a harsher sentence than most crimes that go through the civil route. Although this solves the issue of justice for the victim, it does not solve the issue of remedy for the victim. There is not much that one can do to remedy someone who has been the victim of such an attack. Although money helps, as mentioned before, it does little to repair the damage to that person’s reputation, social standing, and way of life. There is no way for millions of people to “un-see” a nude photo of someone that has been leaked and plastered onto the internet. But, it seems as though financial compensation is the only remedy available at law presently. I can’t really think of any creative recourse that would help the victim feel whole again while also being something that is actually feasible and would help to ameliorate the harm that was already done.

  9. Yes I think sextortion should be criminalized and prosecuted as consistently as possible. In my view it falls within the type of crime, like rape, that requires reporting by victims who are (rightly) afraid of the stigma of being sex victims. The obstacle of producing quality legislation that gives enough strength that prosecutors can bring and win these types of cases and at the same time will survive legal challenges is an issue. I would like to see amendments to section 230 to recognize these types of areas where the default presumption of non-liability could be curtailed under very narrow circumstances. This type of activity has a strong feel that it should be illegal and condemned by the legal system and laws should be adjusted to allow outcomes to reflect that culpability. That Mijangos got 6 years in prison is a complete joke, the result of painfully insufficient laws when it comes to this type of illegal activity.

    I think civil courts sometimes fail in this instance because of the reasons pointed out in the Newseek reading where the victims are unable to put up legal costs to go after perpetrators who lack the funds to make recovery worthwhile. [1] The criminal system helps get around this problem, no matter how rich or poor the sextorter is they could still (theoretically) be brought to justice by sufficient sentencing. An then victims could turn around with those convictions and achieve much easier and cheaper victories for whatever damages they are owed.

    I don’t know what other recourse would be appropriate for victims of these types of crimes. Hopefully internet platforms are responsive to takedown requests and proactive is policing their own communities to prevent this type of crime. That said even if such platforms provide that recourse there will always be another cesspool that is willing to harbor this type of activity and criminal charges and civil complaints need to be viable recourse in those instances.

    [1] http://www.newsweek.com/2014/08/22/how-law-standing-cyberstalking-264251.html

  10. It can be difficult to gain a good conceptual understanding of crimes involving some kind of threatened or coerced sexual behavior when done by computer, Legislators, lawyers and legal scholars often have to try to categorize the bad behavior. Do we already have legislation that prohibits the bad behavior or is something new needed? This can often be unclear when we look at the new “sexualized” offenses occurring on the internet. The laws from state to state vary vastly for crimes such as stalking and extortion when they occur in the physical world. Something that is stalking in Florida may not be stalking in Nevada. Throwing in the digital aspects of the activities listed in the post does not give us good grounds for clarity or consistency. While I am not an advocate of the endless creation of federal crimes, I do think there are some situations where a comprehensive body of federal legislation could be helpful and I do think this is one such area. I don’t think however, that Congress has the ability to create meaningful legislation for this topic. For the moment, it may be more prudent for state legislators to examine existing law and make a determination whether existing law can accommodate prosecutions or where amendments to the law may be needed.

    On the question of the CDA, it may be time for a re-thinking on the protections afforded to ISP providers under the statute. If algorithms can be created to see what a user wants to buy, I don’t see why an algorithms can’t be developed for the ISP provider to run to try and catch some of the offensive materials. I do believe if the First Amendment people would sit down with those trying to prevent crime and work together, we might be able to draft some legislation that is nor over broad thus hindering speech, yet still adequately addresses the criminal justice issues

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

 
%d bloggers like this: