Is a Revenge Porn Bill Next?

When nude photos of celebrities were leaked and distributed all over the internet in 2014, Jennifer Lawrence, as one of the victims, called it a “sex crime.” Meanwhile, the idea that the platforms themselves bore much responsibility to remove the image was met with mixed responses. The leadership at Reddit was so high on the fumes of its own utopian bullshit that they compared governance of the site to that of a democratic nation which should not impose moral choices on its citizens. Into that bro-publica climate, Representative Jackie Speier (D-CA) introduced a bill in July 2016 that would make “revenge porn” a federal crime. The usual defenders of the web raised the same red flags, asserting that even a well-intended bill of this nature would lead to over-censorship online. Then, little was heard about this proposal, except perhaps inside the Beltway.

But suddenly, the landscape is very different, and I would not be surprised if we see movement on some type of “revenge porn” bill in 2018. In light of the head-spinning litany of sexual-assault allegations in the news, the general dilution of Silicon Valley’s political clout, and what seems like the inevitable passage of the SESTA bill, Rep. Speier’s bill might make relatively smooth progress toward ratification next year. If nothing else, it’s easy to imagine Congress passing this kind of legislation in a scramble to get on the right side of the historic shift we’re witnessing with regard to sexual harassment in every context.

Meanwhile, you might have missed the news that Facebook’s recently proposed an internal “solution” to combat revenge-porn, which was appropriately scorned, if not outright mocked, because it requires trusting their “trained” team with your intimate photos so they can protect you. These are the same guys who couldn’t do the math on Russians buying American political ads with rubles. Activist and author Violet Blue wrote a great piece for Endgadget describing why Facebook’s counter-revenge-porn proposal is not wearing any clothes. “The process presumes the victim has these photos in the first place, and cavalierly ignores that this person is living in a nightmarish hellscape trauma that is in no way re-experienced by handing the instrument of their terror to an anonymous, unaccountable, possibly grey alien Facebook employee,” she writes.

The Speier Bill

It’s actually a misnomer to call H.R. 5896 a “revenge porn” bill because revenge porn is a specific act, usually perpetrated by angry ex-boyfriends who get back at women who’ve broken up with them by distributing nude or sexually-explicit imagery they might have made together as a couple. Speier’s bill, titled the “Intimate Privacy Protection Act,” bypasses the issue of motive altogether and merely states that anyone who distributes intimate images—the language defines these explicitly—of adults with “reckless disregard for the lack of consent” of the subject could potentially face federal charges.

Often, the harm does not end with mere embarrassment. Instead, the images may serve as the predicate for a sustained, emotional assault by a male cyber-mob hounding a female victim, labeling her a “slut,” “bitch,” “whore,” and so on. Cites that trade in unauthorized intimate images may extort payments from victims for removal of their images, but there is little to stop the images from migrating virally once online. As such, remedies for removal are nearly impossible, and any effort on the part of the victim to extricate herself from the “hellscape,” as Violet Blue puts it, is more likely to exacerbate the emotional trauma than to ameliorate it.

As an aside, yes, every kind of sex education in the world ought to include a segment on the hazards of making intimate images with networked devices. It’s hard to believe that anyone is still naive enough to think that images created on smart phones, etc. can be kept private without substantial risk. But that kind of personal awareness does not preclude criminalizing the decision by an individual or entity to distribute these images without permission.

Thirty-eight states plus the District of Columbia have some type of law criminalizing “revenge porn,” but given the geographical irrelevance of internet distribution, it seems only reasonable to proscribe the conduct as part of the federal criminal code. Assuming this bill does see any action in 2018, we can expect the usual suspects—EFF, PublicKnowledge, Techdirt, et al—to cry havoc and declare once again the danger that such proposals pose to free speech on the internet.

Whether this chorus will be joined by major platforms like Google, Facebook, and Twitter may not be as predictable as it would have been just a year ago. I suspect these companies are all recalibrating how to spend their political capital now that public sentiment is less inclined to give them carte blanche; and distributing intimate images without permission is not a “cause” most people are going to support. Regardless, when it comes to the various harms that can be caused via cyberspace, it seems the public is catching on to two realities: 1) that an internet policy doctrine based on the natural goodness of people is utter folly; and 2) the tech companies are in way over their heads.

© 2017, David Newhoff. All rights reserved.

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