Why Is Revenge Porn Legal?
Wisconsin recently became the third state to criminalize revenge porn. Why is it still legal in the other 47?
Wisconsin recently became the third state to criminalize revenge porn. Why is it still legal in the other 47?
Writing in The Guardian, Mary Anne Franks and Danielle Citron declare, “It’s simple: criminalize revenge porn, or let men punish women they don’t like.”
With the click of a button, an intimate photo of you can be uploaded to a website where thousands of people can view it and hundreds of others can share it. In a matter of days, that image can dominate the first several pages of search engine results for your name. It can be sent to your family, your employer, your co-workers, and your peers.
We know this as “revenge porn”, and its rise has drawn the attention of lawmakers across the globe. Last week, Wisconsin became the third US state to pass an anti-revenge porn law just this year (after Idaho and Utah).
Revenge porn, more accurately described as nonconsensual pornography, is the distribution of sexually explicit images without the individual’s consent. It’s a serious form of harassment and often a form of domestic violence. Victims are routinely threatened with sexual assault, stalked, harassed, fired from jobs, forced to change schools, even forced to change their names. Some victims have even committed suicide.
At a fundamental level, nonconsensual pornography is an extreme invasion of privacy, one that causes serious and often irreversible harm to a person’s physical and emotional well-being, damage to their reputations, and can even threaten their financial security. As modern societies, we impose criminal punishments for far less. We punish theft, drug possession and destruction of property. So why don’t we punish revenge porn?
[…]
Victims are told that they should never have taken or shared the images to begin with, and that by consenting to be seen naked by one person, they are effectively agreeing to being seen by the entire world.
This position is both morally bankrupt and hypocritical. People rely on the confidentiality of transactions all the time: we trust our doctors with sensitive health information; we trust salespeople with our credit cards; we trust banks with our earnings. We are able to rely on the confidentiality of these transactions because it is taken as a given in our society – most of the time – that consent to share information is limited by context. That intuition is backed up by the law, which recognizes that violations of contextual consent can and should be punished.
This should be especially true for sexual consent – the lack of consent makes the difference between sex and sexual assault. And laws against sexual assault and voyeurism recognize the right of people to control when, how, and by whom they are exposed in their most intimate moments. Everyone has this right to privacy and this right to choose – and this is why we need laws against nonconsensual pornography.
Thankfully, the trend seems to be in the right direction:
Georgia and Maryland are next to join the trend: Both have bills awaiting their governors’ signatures.
The National Conference of State Legislatures is tracking almost 30 similar bills pending in other states, the District of Columbia and Puerto Rico. And federal legislation is in the works: Rep. Jackie Speier (D-Calif.) is drafting a bill that’s expected to be introduced this spring.
I can’t think of a single argument why a spurned lover should have the right to post obviously harmful photographs without the consent of the party in said photographs. The only question, really, is where to draw the line. Franks and Citron propose this:
But we must be careful in crafting these laws – we need to be clear about what we are punishing and how we define the crime. As the Cyber Civil Rights Initiative model statute reflects, the law should criminalize the intentional distribution of sexually explicit images of a person without that person’s consent. The focus on consent is vital, and shouldn’t be obscured by focussing on the perpetrator’s intention – whether they intended to harm the victim, or whether they did this for their own entertainment or profit shouldn’t matter. Such requirements aremisguided, as they detract from revenge porn’s real harm: what matters most is the perpetrator intentionally violated the sexual consent of the victim.
In the US, it’s especially important that such laws are designed to deter and punish malicious invasions of sexual privacy without punishing or chilling otherwise innocent or protected expression under the First Amendment. This means that the law would include some important exceptions – it wouldn’t apply to images taken of people voluntarily exposing themselves in public or images from commercial pornography. It wouldn’t apply to posting a picture of a flasher on a website to warn others. It wouldn’t apply to a friend sending a link to a person to warn them that their image has appeared on a revenge porn site. It wouldn’t apply to an image disclosed to report on a matter of public interest. It would never apply to merely “embarrassing” photos of people in their underwear or in bathing suits.
It would, however, apply to a vengeful ex who sends a nude picture of his former partner to her employer or uploads it to a revenge porn site. It would apply to the person who obtains nude images of people via hacking or theft and uploads them to Twitter. It would apply to people who secretly record sexual activities of or with another person without their consent and post the recordings on YouTube, or to images of sexual assault posted to Facebook.
The only rejoiner of any merit posted by the commenters at The Guardian thus far is that enforcement would be difficult, given that it might be difficult to prove who posted the photos given the anonymity of the Internet. But the counter to that is pretty obvious: all manner of laws, including those against rape and sexual assault, are difficult to enforce. That doesn’t mean we shouldn’t try to deter and punish morally reprehensible acts that clearly harm others.
Since internet streaming is essentially interstate commerce, could this not then be legislated as a federal crime? Is there a need to do this on a state by state basis?
@al-Ameda:
Yea but then the issue becomes how much resources Federal Law Enforcement should devote to this.
The answer to why it’s legal, of course, is that the law has not caught up to technology yet, something that is generally true of many areas.
Just like with any other transaction, unless explicitly stated otherwise in writing, once I obtain something through voluntary means it is mine to do with as I wish. This is yet more nanny state “Govt must protect us” bullshit.
@Doug Mataconis:
Thank you Doug, you’re exactly right about that.
It’s not a matter of the law catching up to technology. The technology has been available for more than 100 years. The law has to catch up with stupidity.
@Jeff Sexton:
.When one is speaking of images of a sexual nature, or at least something that is nude or semi nude, I would suggest that the implied understanding is that the photograph is not to be shared with anyone, and certainly not with the general public, unless explicitly stated otherwise
As the very least, I would argue that the (mostly) women who are subjected to this sort of thing should be able to sue the offending party in civil court for monetary damages and obtain Court Orders for the removal of such images from the Internet, to the extent that last part is within the actual control of the offending party.
The problem with laws like this is: How do we prove lack of consent? Unless you have a written contract saying that the person consents to their picture being posted online and distributed, it’s going to be completely he-said-she-said. I’m not even talking about professional photographers here. It could be a swinger couple that takes and posts photos looking for other couples. Then the swinger couple has a messy breakup and she claims she never consented to having any photos posted online, and has him arrested? What’s his defense here?
@Pinky:
If by “the technology” you mean photography, then yes you are correct. However it is now much easier to share photographs with large numbers of people than it used to be, and most likely probably much more common as well.
What I don’t understand is: why isn’t kind of thing already illegal under some existing law? Surely this kind of thing is already illegal, just as publishing nude or lasciviousness
picture in a porn mag would be without consent?
So is this law to punish those who provide the pictures, publish the pictures, distribute the pictures, download the pictures, view the pictures, etc.? Where does the criminal line get drawn, which should be well determined before we make a special law for a not-new kind of situation.
I just hope the burden of proof isn’t so low that someone could easily publish their own “revenge porn” anonymously in order to legally castigate someone they are basically framing for the crime, as their own revenge scheme.
Young adults (and teens) today just aren’t mature enough to handle the kind of power they have now to take, edit, publish, and distribute impactfull materials like porn, or financially dangerous data (like credit card info, personal info for id theft, etc.). I mean, Polaroid pictures used to be worst risk, but at least instant distribution and copying wasn’t possible.
Now…all bets are off, either way (to harm someone by publishing revenge porn, or falsifying revenge porn to send someone to jail with essentially no proof).
This is a questionable legal area because at one point, both parties gave their implied consent to the photography or video. But, then at a later point when the relationship breaks up, the woman(in many cases) claims to be a victim when the images or video is publicly posted on the Internet when she had previously given consent and the images were not against her free will at one time. Further, some states are trying to criminalize someone withdrawing their consent, without any written notice of withdrawing their consent, which is also of questionable legality. Legally, I don’t think that you can give consent or withdraw it as you feel. Once your consent is given, it probably needs to be expressly stated in writing that you don’t want sexual images of your relationship published on the Internet as part of the terms of divorce if married, and probably since no legal contract follows a boyfriend and girlfriend relationship, withdrawing terms of consent to the images may not be legally possible.
@Doug Mataconis:
There are already invasion of privacy torts that allow a person to sue the other for either taking photos with consent or distributing them in every state I’ve ever seen.
@Ben:
True, although I’m not sure how much they’ve been applied to situations like this, and not every state has the kind of “invasion of privacy” cause of action that you’re thinking of.
@Doug Mataconis:
I know that I recall some cases from my 1L year where “hidden camera” cases were usually allowed to go forward under the “intrusion” prong of the privacy laws. I admit that I don’t know the state of the law in every state, but it was true for several states where we pulled our cases from.
As for the other situation, where it was the distribution that was without consent, I would say that it could be easily argued that it should fall within the “disclosure of private information” prong of the privacy torts. But again, I guess that doesn’t exist in every state, either.
@Pinky:
To Doug’s point, while Photography has been with us for that long, *Digital Photography* and the related communication channels are still very new.
And the digital aspect here is critical because it changes *everything*.
The world of atoms is a world that tends towards scarcity. Everything is unique and everything degrades. By unique, I mean that even copies are individual objects that require resources to create and maintain and can only be possessed by one person at a time. In the world of atoms, it’s entirely possible to actually destroy something forever, provided you can track down all the copies.
The digital work tends towards abundance. The nature of the system is to exactly duplicate its contents with little to no effort. Even “moving” files across computers (or drives) first requires creating a copy of the file in the new location and the instantly deleting the file in the old location. It’s an illusion and an artifact of the atomic world. This essentially means that, provided you are connected to a network, nothing can ever be trusted to be eliminated. Once a file is released, it is potentially in circulation until the heat death of the internet.
That profoundly changes the scope and scale of sharing, not to mention the ability to control any media.
@Ben:
I’m obviously not up on the laws in every state either, but I can say that the civil remedies here in Virginia would be very limited under current law whereas both legislation and court decisions in, say, California, have created a much broader ‘invasion of privacy’ tort than what exists here.
@Doug Mataconis: Doug: I could absolutely see making it a perfectly valid civil case. But I in no way can possibly support it being a criminal case.
@Jeff Sexton:
This cracks me up.
So you want to act like a child and then complain about the “nanny state?” Here’s an idea: If you don’t want a nanny state, don’t act in such a way that it’s what you need.
Some people really don’t need to be told not to post naked pictures of their exes up on the internet. Some people do. If those people complain about the “nanny state.” Oh well…..it’s for them.
@Matt Bernius: The scope and scale, yes, but not the nature of the act itself. A 1960’s swinger ran the same risks by filming things. And the risks are entirely foreseeable. This isn’t like a hidden camera in a changing room. The act of recording something enables its future viewing by anyone.
@Jeff Sexton:
Well there are circumstances where it would be a criminal case such as if the images in question are images of someone under the age of 18 or if there is some form of blackmail involved
The other thing that muddies this up a bit — at least from the civil perspective — is that most of these sites also include advertising.
While “consent” might have been given for the picture, I have to wonder about the issue of giving away all the rights as part of the implied consent.
I disagree. The 1960’s swinger ran a very low risk of that image/film ever existing in perpetuity outside of his/her control. The distribution and replication infrastructure just wasn’t there.
In the pre-digital days, showing someone a picture didn’t essentially transfer ownership of it. Someone might show me a dirty picture, but unless they gave the object to me, all I left with is the memories.
Digital profoundly changes that. The act of sharing a picture across the web means that I don’t just leave with the memory, I leave with a copy of the picture which I am free to redistribute. The act of viewing any image on the internet *requires* making a copy of it on the local machine.The moment a file is made available to the cloud, ANYONE theoretically has access to it. A copy that can, with little effort, be redistributed and reposted later.
That is something that is truly completely new for our culture.
@Pinky:
In theory. However, in practice it’s not so clean cut. Recordings have this whole legal structure around them, influencing who has say, who can do what, and –more importantly– who can’t.
@Matt Bernius:
This.
Weird thing about consent when it comes to sexual matters….you have to keep asking for it.
@Ben: Duh, don’t post something unless you have written consent.
@Doug Mataconis: Especially if the photograph/video is used in stalking behavior or attempts to ruin someone’s reputation.
@ Jeff Sexton
So if I loan you my truck to pick up your new sofa, you are free to use in in a demolition derby?
@Jeff Sexton:
@Doug Mataconis:
That’s one hell of an implied understanding.
I’m with Sexton.
One hell of a slippery slope, this is.
Surprising position coming from an alleged Libertarian.
The non-nanny state answer is simple. No pictures that you don’t want your mom to see. This is really just a version of the most basic rule of the computer age. Don’t put anything into a computer that you don’t want everyone in the world to read.
@anjin-san:
No…but if you let me take a picture of you bare-ass on the tailgate of your truck…all bets are off.
@Jeff Sexton:
once I obtain something through voluntary means it is mine to do with as I wish. This is yet more nanny state “Govt must protect us” bullshit.
I obtained some sweet pics of your mother through voluntary means. Now excuse me, I’m off to Reddit.
@C. Clavin:
Again, my position is that generally should be something that is the purview of the civil courts, not criminal law.
@grumpy realist:
I don’t know about you, but in my personal experience, written contracts weren’t a common occurrence with girlfriends.
@ C. Calvin
So if one party makes a bad decision that is based on trust, it’s cool for the other party to ruin their life?
@anjin-san: Are the only two choices “cool” and “illegal”?
“Why Is Revenge Porn Legal?”
See:
Sexton, Jeff
Clavin, C.
, Ben
, Pinky
There are people on this very board who don’t see this as any sort of problem.
There’s the reason.
So… the photo I have of the presidential candidate/attorney general/priest in flagrante with the intern just has to be buried in my scrapbook? I go to jail if I publish it? Or I get sued?
Publishing it will surely cause harm, inflict emotional distress, public shame, cause embarrassment, etc.
@Doug Mataconis:
I have no problem with it being under the purview of both. Indeed, as you have yourself noted, there are situations where a criminal case would be more appropriate than a civil case.
@John Burgess:
From the article. Or is it too much work to read the excerpt?
@EddieInCA:
I never said that I didn’t see a problem. I just think that criminal law is not always the best way of solving a problem. That usually tends to create all sorts of unintended consequences. And depending on whether they write any sort of presumptions against consent into the law, it will be extremely hard to prove or to disprove based on anything other than he-said-she-said, and basically just turn on whether the jury finds the defendent or the alleged victim more scummy. Those cases tend to make for bad law and unjust outcomes
@EddieInCA: I didn’t say it wasn’t a problem either.
@anjin-san:
I’m not saying it’s “cool”…just that legislating it is a really bad way to go.
Ultimately though…yes…bad decisions often have consequences.
FTFY
@John Burgess:
So… the photo I have of the presidential candidate/attorney general/priest in flagrante with the intern just has to be buried in my scrapbook? I go to jail if I publish it? Or I get sued?
First, it’s not a crime to begin with. That’s what is being discussed. Second, there are different rules for public figures. Beyond that, yes you could be sued, perhaps successfully, but that would probably depend in the details.
In any case, what you should do is give it to a reporter. If its in the public interest, it will be printed with very little chance of consequences for you.
But we’re not talking about public figures being caught in compromising situations. We’re talking about your sister’s ex-boyfriend posting a nude photo of her on the Web to get back at her.
@C. Clavin:
No pictures that you don’t want your mom to see. This is really just a version of the most basic rule of the computer age. Don’t put anything into a computer that you don’t want everyone in the world to read.
What if the victim never put anything on a computer? What if she just let her boyfriend snap a photo one time? What if he did it while she was sleeping?
@Jeff Sexton:
I recommend that you make this position explicitly clear, preferably in writing, at the very start of every single relationship you have, with everyone you know. Make it particularly to clear to anyone you have or hope to have a romantic/sexual relationship with. I look forward to hearing how many of them say “Of course! Naturally!”
@mantis:
I get it…I get it…I just don’t think legislation is the answer.
And by the way…taking a picture with your phone is putting it in a computer.
@C. Clavin:
I just don’t think legislation is the answer.
Then what’s the answer?
And by the way…taking a picture with your phone is putting it in a computer.
I know that. I never said anything about a phone. I happen to know someone who had an ex-boyfriend post a compromising photo of her on the Web a few years ago. He had taken it with a Polaroid almost ten years prior, stumbled on it while moving, scanned and posted it. He thought it was funny. It wasn’t.
@ Pinky
Well, there is also “scumbag”
@ C. Calvin
So what is the plan? Because in my book, posting a nude photo of someone you used to be involved with simply to hurt them is unacceptable. I don’t see a hell of a lot of difference between this and stalking.
Let’s say you have a 19 year old daughter, and now about half a million guys have seen her naked.
Are you really going to tell her “bad decisions often have consequences”?
@C. Clavin: You seem to be ignoring the fact that with the shrinking of technology photos can be taken with the subject never being aware of it. Camera phones that fit in the palm of a hand can take photos/movies and the taker doesn’t even have to be particularly covert. I’ve had photos and movies taken of me which I didn’t notice at the time, and that’s by people who were being open about their actions. Now consider the person who’s starting to feel a little unhappy in the relationship and decides to be sneaky. Afterwards they can claim “hey, I had the camera right in front of them, I thought they noticed.” Pretty hard to prove otherwise.
@anjin-san:
Mine isn’t old enough to make those bad decisions, but yes. Of course I would also be going after who shared them with every legal tool available.
@mantis: What if she just let her boyfriend snap a photo one time? What if he did it while she was sleeping?
In the second case, no consent was ever given. It would seem that would fall under regular invasion of privacy or peeping tom laws.
As for the first case, if you give your girlfriend breast implants, can you demand them back after you break up because you don’t want anyone looking at them? If she pays for you hair implants, can she demand them back?
I have no problem with being able to sue for harassment if your ex sends your naked photos to your boss or your co-workers. There’s a clear intent there and easily anticipated result. But telling someone they can’t post a photo they own to a publicly accessible website because someone else doesn’t like it? What if someone posts completely true stories about how his or her ex is a jerk/idiot/racist/whatever? Should that person be at risk of civil or criminal prosecution?
Mike
What exactly is unclear about the intent of someone posting a nude photo of an ex on the internet? Obviously if this has happened, it is not an amicable situation. The intent to do harm is crystal clear.
@anjin-san: @anjin-san: The intent to do harm is crystal clear.
No, it’s not. Maybe it’s being posted because the poster thinks it proves something about him or herself? “Look at this hot piece I used to bang! There must be something pretty great about me, right?” Or it could be some desperate attempt to remind the other person of when they cared enough to let themselves be photographed like that.
And as I stated, intent isn’t the only issue. Unless the ex knows your boss or your family or your friends visit revenge porn sites, how can he or she predict what if any negative consequences will befall you?
And I say he or she, but does anyone feel sympathy for a guy who sends a dick pic to a girl and she flashes it around?
Mike
Gee that’s a tough one. By thinking about it for twelve seconds?
@anjin-san: Gee that’s a tough one. By thinking about it for twelve seconds?
And what if your ex cheated on you? What if he or she ruined your credit rating?
And what if you’re talented enough to draw a photograph quality image of your naked ex? What about a sculpture? Could your ex sue you for putting it in a museum?
Freedom of speech does not go out the window when it comes to white trash bad behavior.
Mike