The Case for Making Revenge Porn a Federal Crime

With Rep. Jackie Speier's announcement yesterday that she intends to introduce a federal bill criminalizing "revenge porn" into the house in the month, people were asking the same question they often ask about revenge porn: Why isn't this already illegal?

The short answer is that law enforcement often doesn't take it seriously. There are existing laws against harassment, but even victims of ordinary harassment have always had a hard time getting the authorities to pay attention. And anecdotal evidence suggests that the cops tend to presume that harassment laws don't apply to the behavior of the kind of people who contribute to websites like Is Anyone Up, You Got Posted, and myex.com ("It's just online").

So: absent specific criminal laws addressing the subject, people who are harassed in this particularly vile way can't convince anyone to do anything about it.

This is why, once Speier has actually got a draft of this proposed bill out there, we're going to have to have a discussion about making the non-consensual distribution of each other's naked photographs a federal crime.

State politicians, moved by all the news stories you've also been reading about this varietal of internet cruelty, have begun to respond too. Of course, they've done so in the lethargic and occasionally ham-fisted way of state legislatures. California, New Jersey, and (as of two weeks or so ago) Idaho do now all have laws on the books designed to address revenge porn specifically. Alaska and Texas also have broader statutes that could apply to the dissemination of nude pictures. Some of these laws are better drafted than others — the California law (stupidly) excludes selfies from protection, and the Texas law has already been declared unconstitutional by an appeals court.

More than twenty other states, including Florida, Maryland, and Utah, have bills designed to address revenge porn moving along somewhere in their legislative processes. The map below simply shows where the bills and legislation are either in place or in progress, and where they aren't, per the National Conference of State Legislatures:

The Case for Making Revenge Porn a Federal Crime

Not exactly the kind of patchwork quilt that makes one feel warm and protected, is it? Over half of the states have nothing going on. And of course not all the bills in varying stages of life will make it to the law books.

As Danielle Citron, a University of Maryland law professor who studies cyber-harassment, put it to me in an email this morning, "A federal criminal law would be a crucial companion to state efforts. It would provide legal protection against revenge porn in cases where the states either failed to pass legislation or state law enforcement refused to act."

So that's one reason to have a federal law that covers this behavior. It would offer actual protection. It would also, as a matter of symbolism, perhaps go a long way towards convincing cops that it is a real problem they should act on. (Training would help too, Citron notes.)

Another reason has to do with the immunity that website owners have from being held liable for the acts of the people who post on them, under Section 230 of the Communications Decency Act. As Mary Anne Franks, a University of Miami law professor who is working on the Speier bill, wrote to me in an email:

... online entities protected by Section 230 of the Communications Decency Act are provided with a special defense against state criminal laws, but not against federal criminal laws (or federal copyright laws, for that matter). A federal law means that a revenge porn site claiming to merely provide a platform for angry exes to upload sexually explicit images of their former partners will not be able to hide behind Section 230.

In other words? Having a federal law against revenge porn might mean that instead of having to bust people like Hunter Moore for hacking if we want to put them in prison, we could just prosecute them directly for, as Sam Biddle once put it, "building an entire career atop posting stolen naked images of women across the country."

Are there First Amendment concerns to consider here? Yes. In the original article on the Speier bill, one attorney for the Electronic Frontier Foundation summed up the concern quite nicely:

"Frequently, almost inevitably, statutes that try to do this type of thing overreach," he said. "The concern is that they're going to shrink the universe of speech that's available online."

But Citron adds that she doesn't think a federal law, if drafted properly, would have that effect. Existing laws against cyber-stalking and extortion have not chilled people's freedom of speech so far, she notes, so a law singling out malicious and intentional revenge porn would not likely do so either.

Franks, who says Speier's bill will look something like the model statute she provides here, adds, "I take very seriously both the grave nature of the harm and the First Amendment implications of regulating it. I have worked very hard to ensure that the definitions of the conduct are very narrow and that the type of conduct prohibited is very clear. I have also worked very hard to include exceptions for disclosures that serve the public interest."

Any future social media activities of one Anthony D. Weiner, in other words, probably will still be reportable under this law.

[Images by Jim Cooke.]