Revenge Porn State Laws Spread; A Federal One Remains Elusive

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Advocates of the Intimate Privacy Protection Act expect it to be reintroduced early in 2017.

Mary Anne Franks had been working on legal issues surrounding online harassment, particularly towards women, for years before Holly Jacobs walked into her University of Miami office and put a new spin on her cause.

In 2012, Jacobs’ ex-boyfriend posted online intimate photos she’d taken for him, and the images blazed across the Internet, devastating her professional and family relationships. But she couldn’t do anything about it because Jacobs was the victim of something that wasn’t yet a crime—something known as “revenge porn.”

She reached out to police and to lawyers, hitting a legal wall each time before contacting Franks, a law professor and the director of legislative and tech policy at the Cyber Civil Rights Institute.

“She came into my office with a binder with her story and with all this documentation of how this had absolutely ruined every aspect of her life,” Franks recalls. “And she said to me, ‘I want you to help me change the law.’” Change it they have.

Problem is, there’s nothing yet on the federal level.

U.S. Rep. Jackie Speier (D-Calif.) is trying to change that, introducing last summer a bi-partisan bill that aims to cut through the murkiness of nonconsensual pornography legislation in one fell swoop. If passed, the Intimate Privacy Protection Act would criminalize the knowing distribution of sexually explicit images of people without their consent. Perpetrators could face fines and up to five years in prison.

Speier’s legislation is important because the state laws are all written differently. A federal law would provide a clearer path for dealing with nonconsensual porn cases nationally, and even provide recourse to victims in the 16 states that haven’t enacted legislation thus far. It would also enable more resources, such as the FBI, to be tapped for revenge porn investigations across multiple jurisdictions, especially if they cross state lines.

Moreover, revenge porn sites have been able to claim that they are immune to a Federal Communications Commission regulation, Communications Decency Act Section 230, by arguing that they’re simply providing a space for people to post any content they want. State law can’t trump Section 230, but a federal law like the one Speier is proposing can.

The IPPA, as the proposed law has come to be known, doesn’t just condemn the knowing distribution of intimate images without consent. It considers such distribution as a privacy violation and not just an act of harassment.

In a statement, Speier’s office notes that nonconsensual pornography is not always promoted by a scorned ex, and it’s not always about revenge.

“Recent examples of this would include recent cases of medical and law enforcement personnel sharing private images of vulnerable individuals for entertainment purposes,” the statement explains.

Furthermore, IPPA zeroes in on harm done rather than intent.

“The unauthorized disclosure of the most intimate moments of a person’s life, whether driven by malice, greed, or voyeurism, causes immediate and often irreversible harm,” CCRI’s Frank says as part of the statement. “This bill is urgently needed to deter this conduct before it happens, and to offer victims the possibility of justice.”

Speier’s bill has co-sponsors from both sides of the aisle, with Reps. Katherine Clark (D-N.Y.), Ryan Costello (R-Pa.), Gregory Meeks (D-N.Y.) and Thomas Rooney (R-Fla.) lending their name to the legislation. The non-profit CCRI, which is working to raise awareness of online harassment and to provide support to victims of it, as well as the Information Technology and Innovation Foundation, a Washington, D.C., tech policy think tank, are supporting the bill. Facebook Inc. and Twitter Inc. are on board, too.

But one organization that IPPA supporters thought would be in their corner isn’t.

The American Civil Liberties Union maintains that there should be a clear intent to harm on behalf of the distributor of the images, and an expectation of privacy when it comes to the person whose image is being distributed. While the ACLU hasn’t taken a formal position on the IPPA, the organization expressed concerns that the bill contains neither of those provisions.

Where the bill’s proponents and the ACLU appear to clash is over those instances mentioned earlier regarding entertainment. The IPPA’s focus on harm here over intent bothers the ACLU.

“We have been going through a great debate in this country over the last several years, a decade or so, about whether our criminal justice system works in a way that it puts people behind bars who really, truly deserve to be behind bars,” says Michael Macleod-Ball, chief of staff of the ACLU Washington Legislative Office. “What we’re trying to do—in not just this legislation, but any legislation that imposes criminal sanctions—is to make sure that the crimes are defined in a sufficiently specific way so that you’re getting at the truly bad actors.”

It’s a tricky line to walk. Widely considered the guiding light of civil rights advocacy, the ACLU’s influence plays a mammoth role in the shaping of state legislation on nonconsensual pornography. Last year, for example, the ACLU blocked passage of what it considered to be an overly broad Arizona law pushed by advocates for victims of nonconsensual porn. The law would have banned the publication of any photo showing nudity or sexual activity, consequently affecting unrelated parties, like booksellers, journalists, and photographers.

Franks, in a phone interview, says the ACLU seems to be mixing up two different issues: privacy and harassment.

“They’re trying to treat nonconsensual pornography as harassment, which we already have laws for, and not recognizing that it’s a privacy violation, which would make it much more on par with the type of laws they have advocated for,” she asserts.

The ACLU’s Macleod-Ball refutes Franks’ assessment. “If you’re going to institute a criminal penalty for certain actions, you ought to make sure that there are legitimate privacy interests that are being violated,” he says by phone. “And having something that addresses the expectation of privacy of the person whose image is being posted is one aspect of looking at that.”

The ACLU stresses the importance of paying close attention to those kinds of details and creating specific, airtight laws.

“Having definitions that are not precise enough simply gives more discretion to those who are exercising the great weight of the state,” Macleod-Ball says. “We don’t want to see those kind of tools for abuse in the hands of people who have that power.”

For now, the IPPA will have to wait. Franks predicts it’ll be reintroduced sometime early in 2017.

That delay will give advocates more time to try to convince the ACLU, which Macleod-Ball says is open to discussing the language of the bill. If it were to pass, Franks says increasing awareness of the bill, passage of legislation in the 16 remaining states, and amendments to existing state laws that contain the intent provision would be next up on the agenda.

“We really like to hope there will be quick movement on the issue because there is pretty strong bi-partisan group of supporters,” she says. “And we really hope that, in these very, very divided times, that maybe one of the things we can all agree on is that incredibly destructive invasions of privacy are something that we actually can take action on and we can do something to stop it.”

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  1. Proponents say Speier’s bill would bring clarity to the patchwork of state law, augmenting existing rules and bringing new protections to victims in states without them.

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