Category: Law & Policy

Should Revenge Porn Be a Federal Crime?

First, for those lucky enough not to know, “revenge porn” is the term used to describe the practice (usually by disgruntled ex-boyfriends) of distributing nude or sexually explicit images of people via the Internet without permission.  Once out there, as we all know, images and videos can end up anywhere, copied and redistributed by anyone; and this includes websites designed specifically to profit from traffic drawn to revenge porn.  In some cases, owners of these sites have even extorted money from victims in exchange for removing their likenesses from these sites.  Nobody writing editorials or legal opinions on the matter defends the practice itself.  We all agree that posting these intimate images without permission and violating that trust is a despicable practice. Where opinions diverge is what to do about it from a legal perspective.

Representative Jackie Speier (D-CA) is the lead sponsor of a bill that would make revenge porn a federal crime in the U.S., and the bill is set to be introduced in the House in coming weeks.  While some states have passed laws prohibiting revenge porn, and other existing laws already criminalize several of the actions required to perpetrate revenge porn (e.g. hacking or stealing data), the rationale for making revenge porn itself a federal crime is apparently Sec. 230 of the Communications Decency Act.  Section 230 provides safe harbors for site owners, who cannot be held liable for the actions of third parties using their sites.  These safe harbors do not apply to liability for federal crimes such as child pornography and copyright infringement; so enacting Speier’s bill would not only provide the grounds for prosecuting the individual perpetrators of revenge porn, but it would provide a legal basis for prosecuting site owners anywhere in the U.S. that host revenge porn.  On the other hand, some concerns have been raised that if Speier’s bill were to become law, it would jeopardize free speech by circumventing the intent of Sec. 230 of the CDA.

Last April, Mike Masnick at Techdirt wrote a post that dispassionately suggests this bill could undermine safe harbors and foster censorship of legal and sanctioned material.  To quote:

“By spreading liability, you guarantee over-censorship. It’s easy for people who are narrowly focused on a single issue to not recognize the wider impact that issue may have. Trying to accurately describe what “revenge porn” is for the sake of criminalizing its posting, will almost certainly have chilling effects on third parties and undermine the very intent of the CDA’s Section 230.”

I don’t think Masnick is quite right to say that it is hard to describe what revenge porn is. I defined it above, he defined it in his post, others have defined it in other editorials. Admittedly, though, revenge porn is a problem different from child pornography, which is addressed simply by making all sexually explicit material involving minors illegal to produce, distribute, or possess.  But in the world of adults, how does one distinguish between an amateur nude shared by permission and one distributed without permission; and then where do we draw the lines of responsibility for that distribution given the chaotic nature of digital reproduction and distribution?  Still, it seems as though fears of “guaranteed,” rampant censorship are a bit overwrought in this context.

With regard to criminalizing revenge porn, the results I imagine we want ought to be legislatively achievable without chilling free speech.  We should want to prosecute the individual who initiated the unauthorized distribution, and we’d want to prosecute the site owner who knowingly and specifically trades in revenge porn.  And it is not clear why this narrowly-focused goal must lead to censorship anymore than statutes criminalizing child porn.

The concern Masnick and others appear to be raising is that innocent site owners, fearful of criminal liability, will be motivated to over-censor their own sites through TOS policies, and that will have a chilling effect on speech.  But this seems reactionary, given the very specific nature of the crime.  For instance, one way to indemnify site owners in this case would be to create a DMCA-like provision that enables a victim of revenge porn to demand removal of her/his private images and gives the site owner no option to refuse. If the site owner complies with the request, no liability should exist.  At best, victims of revenge porn should have as easy a mechanism as possible for removal of the unauthorized content; at worst, if the claimant isn’t really a victim of revenge but simply wants her photos removed, can anyone rationally claim free speech will suffer from this “abuse” of the new law? In such a case, she may be falsely accusing an individual of a crime, which is a serious offense, but not a First Amendment issue.  Regardless, the claimant should have to be the victim herself, so abusing the law to chill speech seems unlikely.

Another factor to consider with proposed criminalization of anything is whether or not the law would act as a deterrent.  Unfortunately, criminal penalties often do not deter criminal behavior; but in this case, I suspect making revenge porn a federal crime would have demonstrative mitigating effect, if, in fact, most of the sources of these images are grumpy ex-boyfriends acting rashly.  Criminals with profit or survival motivations and individuals with various psychoses are not easily deterred by the threat of prosecution, but regular guys just being stupid often are deterred by the law.  And in this regard, criminalizing revenge porn is an important step toward a more enlightened and civilized, digital future. It has become too easy to cause harm to someone by remote control, cloaked in anonymity, and normalizing this behavior is a betrayal of the original goals of the Internet.

Interestingly enough, last month, Google announced and then retracted new policy for its blog-hosting site Blogger that would appear to have censored legal and consensual, sexual content.  Originally meant to take effect on the 23rd of this month, Google stated that sexually explicit material would not be allowed on Blogger unless it provides “public benefit, for example in artistic, educational, documentary, or scientific contexts.” I have to say that’s some rather subjective language coming from a company that repeatedly states it “cannot be responsible for policing the Internet” with regard to criminal or offensive activities. Ever since the Deep Throat case, nothing in the law even presumes to make such distinctions with regard to censorship of explicit material, but Google’s TOS almost did, if it were not for the backlash from thousands of users, particularly those who post sexually explicit articles, photos, and videos. One of these bloggers, Zoe Margolis, even used the words “it breaks the Internet” to describe Google’s proposed policy to make all sex-oriented blogs private rather than public. Was Google motivated to change the Blogger TOS in anticipation of the success of Congresswoman Speier’s proposed bill, or was the company’s sudden priggishness motivated by some other factor?  Margolis suggests a financial incentive — that Google didn’t want to be hosting “free porn,” and this ought to at least give my friends with copyright interests reason to chuckle at that particular hypocrisy.

Regardless, I think the point in this context is that the amount of “censorship” on the web is a dynamic (dare we say evolving?) process that is driven as much by the business interests of the major site owners as by any particular statutes.  While I agree that free speech must always be a foundation of these debates, I believe it is incumbent upon us as a decent society to address the fact that new technologies create new ways for bad actors to rather casually cause great harm to individuals who cannot defend themselves. And this is hardly the first time we’ve had to seek a balance between liberty and justice.  Avoiding criminalization of a behavior like revenge porn for fear of some very improbable forms of censorship sounds like a cop out to me.

Releasing police body cam video undermines their purpose.

Last week, The Los Angeles Times reported that the 7,000 officers of the LAPD will soon be wearing body cameras to record their interactions while on duty.  Communities that have employed these cameras have reported significant decreases in the number of claims of police misconduct (reductions as impressive as 90%), and it is fair to assume those statistics represent both actual changes in officer behavior as well as a reduction in false claims of misconduct.  The fact that the presence of body cameras can provide evidence that can protect both civilians and officers is a very attractive proposition; but the extent to which the videos captured should be made automatically available to the public via the Internet is a subject of debate in Los Angeles and other communities. While some citizens will argue a right to know in this regard, I generally agree with LA Police Chief Charlie Beck, who is quoted in the Times article thus:

“I think people misunderstand transparency as having everybody and all the public have access to everything. And it isn’t so much that as having the ability to have oversight by multiple entities outside of the Police Department. I think that’s the meaning of transparency.  I don’t think that transparency means we post every interaction on YouTube.”

Indeed, in viewing both the social trends and the economics associated with social media, I believe the potential harm of broad distribution of police body camera video outweighs the benefits of doing so and could undermine the value of deploying the technology in the first place.

Privacy & Decency

As cited in the Times article, Chief Beck emphasizes that officers respond to a wide range of calls, like entering the homes of victims who have experienced horrible violations by all manner of perpetrators.  So, I hope we can all agree that perhaps a woman who just called the cops because her husband beat her up should not become not free reality TV for us to ogle via social media.  And domestic battery is relatively tame compared to the anthology of horrors that humans visit upon one another and to which police officers are often witness.  More to the point, the volume of police encounters involving events that we have no business watching (let alone allowing some website to monetize) is far greater than the volume of encounters in which may see a need to scrutinize the conduct of the officers.  And in cases in which such scrutiny is necessary, justice is likely to be best served if the related video remains sequestered during investigations and trials.  By distributing all police body cam video to the public, we risk turning various forms of human suffering into a Circus Maximus that is more likely to serve our crass taste for ugly spectacle than it is to serve justice.

Due Process

There are several good reasons why evidence in a case remains sealed and juries are meant to be comprised of citizens who have seen or heard as little evidence as possible at the start of a trial.  Imperfect as our criminal justice system may be, I really don’t think we want to substitute the fundamental components of due process and jury trials for digitally deputized lynch mobs, no matter how incontrovertible video evidence might appear to be.  In the immediate aftermath of the Boston Marathon bombing, a self-appointed posse formed on Reddit that zeroed in on a suspect, who drew attention partly because he had gone missing.  It turned out that the poor guy the Redditors had identified was “missing” because he had taken himself to a secluded location to commit suicide. And the only result the online posse managed to achieve was to spawn harassment of the young man’s family in advance of the grief that would come when they  learned of his death.

Online vigilantism frequently turns into actual harm; and it doesn’t matter if many of us think the victim “deserves” it because we saw a video of him doing something bad.  Evidence has already shown, and logic certainly suggests, that the mere presence of the body cameras already brings about desired effects without dumping all the video onto YouTube for the world to chat about.  It is sufficient, and probably even more effective, for an officer to be aware that a constant record is being stored, which can be entered into evidence in a case against him for abusing his authority.  If that same video is made public, the officer’s attorney has an opening to strike it from the record, the prosecutor has a harder time empaneling a jury of peers who haven’t drawn early conclusions; and these factors alone are more likely to further entrench the standard practice of not indicting officers for apparent wrongdoing than to move the trend in the other direction.

It Probably Wont Help the Larger Cause

I personally believe the case of Michael Brown is pretty fuzzy because the only evidence available corroborates Officer Wilson’s testimony. But the Eric Garner case in NYC is another matter; we have citizen-filmed video that shows an officer using excessive force and killing Mr. Garner with an illegal choke hold.*  While it’s true that even video footage requires context and other evidence to properly weigh any case, the fact that there was no indictment in the circumstances involving Mr. Garner is a travesty; but the reasons for this failure are cultural, political, and yes, racial.

The flaws of law enforcement policy and any underlying racism that may affect procedure in various communities require real social change that is just as likely to be stymied by constant distribution of body cam footage as it is to be aided by whatever illusion of transparency that distribution would create.  I say illusion because, as I have argued in several contexts, there is an assumption by well-meaning citizens that raw, decontextualized information must inevitably foster a majority and morally-aligned public who will pressure authorities for change.  Interestingly, though this assumption is contradicted by the fact that for all the increase in leaks and smart-phone videos and raw data dispersion, we see even greater schisms and social discord on a range of issues  than in years prior to this media saturation. Unfortunately, an unexpurgated video has the same potential to ignite a racially-motivated defense of police brutality as it is to ignite racially-motivated retaliation against police in general.  Reason based on evidence does not necessarily prevail in the larger public forum; in fact, it rarely does. And video can be a highly emotional medium.

We have a lot of video now that has sparked plenty of outrage but has done very little to move us toward greater balance or away from policies that, for instance, disproportionally place black citizens in conflict with police officers.  There is no denying that there are millions of Americans who will support those policies by saying “Yeah, but there are more black criminals,” and then we’re off to the races in every sense of the word. How are the cultural complexities of that or any other shouting match going to be calmed by the mass distribution of these videos? I suspect tempers would not be mollified, that these raw images would throw more fuel on an already smoldering fire.  If that’s true, the resulting increase in tensions will only make communities less politically capable of adopting law enforcement policies that might forge better relations among citizens and officers. Or am I missing something?  Have internet comment threads generally decreased the level of vitriol in society?

As stated, I like the idea of these cameras as a hedge against officers who might abuse their authority and as a tool to protect officers who may be wrongly accused of such abuse.  But turning the footage itself into an ongoing spectacle, calling it oversight, and then allowing YouTube and others to monetize the show, does not sound to me like social progress.

*The proximate cause of death may not have been the choke hold.  I don’t mean to write  anything careless about the case itself and thank commenter Angry Villager for making a valid criticism.  The larger point, of course, is that even with a video viewed by millions, the conditions preventing further investigation or indictment may prevail.

Groups Send Pro-IP Letter to Congress

An open letter supporting intellectual property was sent today to the 114th Congress.  The majority of its signatories are conservative political organizations, which is reflective of the now-Republican majority in both houses; but the letter is also signed by several left-leaning organizations as well as academics representing non-partisan study groups and think tanks.  Titled Intellectual Property Guidelines, the letter briefly outlines a rationale for the new congress to support and maintain strong IP protections, emphasizing the following eight premises:

  • IP Rights Are Grounded in the Constitution
  • IP Rights Are a Fundamental Property Right Deserving the Same Respect as Physical Property
  • IP Rights Promote Free Speech and Expression
  • IP Rights Are Vital to Economic Competitiveness
  • IP Rights Must Be Protected Internationally Through Effective IP Provisions in Trade Agreements
  • IP Rights Are Integral to Consumer Protection and National Security
  • IP Rights Must Be Respected and Protected on the Internet
  • Voluntary Initiatives to Address IP Theft Are Positive

It’s too short a letter to warrant a summary, but I will quote one statement about the Internet, which reads, “A truly free Internet, like any truly free community, is one where people can engage in legitimate activities safely, and where bad actors are held accountable.”  This is consistent with the post I just wrote about accountability, arguing that if we too eagerly embrace the anarchy of digital life, this only leads to mob rule, and mob rule only leads to some form of tyranny.

There isn’t a lot of bi-partisan support for much these days, but over the few years since I have been paying attention to these issues, the fundamental principles of Intellectual Property rights appear to maintain support among most Americans across the political spectrum.  The basic concept that any individual may own the fruit of his or her intellectual labor, that it does not belong to the mob regardless of changes in technology, still seems to resonate with conservatives and liberals alike.  And that is certainly encouraging.