Tag: Jackie Speier

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.

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.