It’s been nearly ten years since I first heard the term “revenge porn” and wrote a speculative post inspired by then Rep. Jackie Speier’s bill to make the act a federal crime. Much has transpired since then, including the obsolescence of the term “revenge porn” and the progress of generative artificial intelligence (GAI), which has already changed the nature of nonconsensual pornography. Legislation is in the works to address GAI used for this purpose, but in the meantime, the Senate on Wednesday finally passed the bill known as the Stopping Harmful Image Exploitation and Limiting Distribution, or SHIELD Act.

If SHIELD becomes law, the conduct of distributing intimate images without permission will be a federal crime with penalties that include fines and prison sentences. This is a game-changer, both pragmatically and culturally—fostering equitable remedies for victims and reasonable deterrents to at least some who might engage in the conduct. Further it signals a more mature relationship to digital life, leaving behind the rhetoric and handwringing that new liabilities for new harms conducted through online platforms will lead to rampant censorship of protected speech.

A decade ago, the phenomenon called “revenge porn” was still relatively new, and there was little general understanding about its potential for causing harm—or why the term itself was a misnomer. Initially, the “revenge” part referred to mostly men lashing out at ex-girlfriends or ex-wives by disclosing intimate images which had originally been shared in private. Distribution included web platforms that solicit and display “revenge porn” where the perpetrator could find a virtual fraternity of anger bros adding degrading, threatening, and rape-themed comments to the unlawfully displayed images. But the term was problematic from a legal standpoint.

Thanks substantially to the work of Dr. Mary Anne Franks and Danielle Keats-Citron, in their capacities as legal scholars and leaders of the Cyber Civil Rights Initiative, legislation at the state and federal level is focused on the act of nonconsensual disclosure, and not the motive per se. Because the motives for disclosing intimate images vary from immature “kicks” to sextortion, it was essential that the cause of action should not be limited solely to an intent to cause harm

SHIELD criminalizes nonconsensual disclosure, either with an intent to cause harm or if harm is caused unintentionally. This includes “…psychological, financial, or reputational harm, to the individual depicted.” As I say, a lot has changed over the last decade, and sadly, there is now a preponderance of evidence that nonconsensual distribution of intimate imagery (NDII) causes a spectrum of harmful results, including professional opportunity and relationship loss, psychological trauma, harassment, threats, physical violence, and suicide. In fact, Cyber Civil Rights Initiative has recently adopted the term Image-Based Sexual Abuse (IBSA) to properly frame the nature of so-called “revenge porn.”

A decade ago, legislation like Rep. Speier’s was met with the predictable criticism that it would sweep too broadly, cause undue censorship online and chill the speech right. In fact, anti-IBSA legislation survived First Amendment challenges in five of the now 49 states that have such laws. In 2022, when the Indiana State Supreme Court upheld that state’s law, Dr. Franks stated, “Indiana is the fifth state supreme court to uphold the constitutionality of criminal prohibitions of image-based sexual abuse. It should now be completely clear that there is no First Amendment right to disclose private, sexually explicit images of another person without consent.”

Since 2015, the theory that these laws were unconstitutional violations of the speech right has not only been tested at the state level, but the fervent belief that everything online is protected speech has waned considerably. Mitigating harm online, especially anything involving sexual abuse and minors, is one of the few subjects of bipartisan agreement these days. The fact that SHIELD passed the Senate this month suggests to me that it will become law by the end of the year. It will be an essential step in protecting the mostly women and girls who are targeted for IBSA.

Image source:  SBArtsMedia