Law Prof Writing Revenge Porn Legislation Wants To Upend Safe Harbors On The Internet 'For The Children'
from the let's-nuke-the-internet-to-kill-that-one-thing dept
It's pretty much universally accepted that "revenge porn" is a bad thing and that steps should be taken to prevent the posting of someone's private photos (usually along with contact info) at various websites that entertain the small minds that find this cathartic or fascinating or hilarious (and, of course, it's even worse that many of these sites then try to charge people to take down their photos).
Unfortunately, because it's so thoroughly reviled, attempts to curtail revenge porn tend to be poorly thought out. One bad law can do an awful lot of collateral damage -- something those actively pushing legislative solutions tend to forget in their hurry to rid society of unpleasantness.
Mary Anne Franks, a law professor at the University of Miami, has been pushing to get revenge porn criminalized. To that end, she is helping draft a bill with an (unnamed) member of Congress. The problems with her proposed legislation are several. Houston defense attorney Mark Bennett has unpacked the First Amendment implications (mostly negative) of her proposed law in two excellent and thorough posts over at his blog, Defending People.
A overly-simplified reduction of Franks' arguments in favor of the proposed law boils down to this: because it's unpleasant and most people would find it offensive, it isn't protected by the First Amendment. Bennett disassembles each point she makes and they all seem to come back to this.
Franks: "The First Amendment does not serve as a blanket protection for malicious, harmful conduct simply because such conduct may have an expressive dimension. Stalking, harassment, voyeurism, and threats can all take the form of speech or expression, yet the criminalization of such conduct is common and carefully crafted criminal statutes prohibiting this conduct have not been held to violate First Amendment principles. The non-consensual disclosure of sexually intimate images is no different."
There is a world of difference between “The First Amendment does not serve as a blanket protection for malicious, harmful conduct” and “malicious, harmful conduct is unprotected.”As Bennett details, Franks has approached this largely in the "activist" role, rather than a scholarly role. In doing so, she's made arguments current case law just doesn't back up. That itself is problematic considering she's working with a Congress member to draft a law that will address an already-emotionally charged issue.
Franks makes a number of such assertions as “the non-consensual disclosure of sexually intimate images is no different,” but stamping her foot and insisting that it’s so doesn’t make it so. Even if a law professor is incapable, a competent lawyer can always find a difference between two things. One important difference between the disclosure of sexually intimate images on the one hand, and the conduct of harassment, threats, and stalking on the other, is that a statute forbidding the former is necessarily content-based, so it must meet strict scrutiny.
“It’s kinda like harassment” doesn’t overcome the obstacle of strict scrutiny, especially since the Supreme Court has never upheld a criminal harassment statute.
But it gets worse. Scott Greenfield points out a recent interview Franks did with US News and World Report, where she makes this troubling statement.
Websites that specialize in revenge pornography cannot currently be forced by state law to remove content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn't violate federal copyright or criminal law.Having earlier questioned how long it would take Section 230 to fall in the face of anti-revenge porn efforts, Greenfield now has his answer.
"A lot of companies are under the impression they can't be touched by state criminal laws," Franks said, because "Section 230 trumps any state criminal law."
The Communications Decency Act, however, doesn't trump federal criminal law, she said, pointing to child pornography.
"The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations."
"Hopefully," she said, "we would develop a similar take-down notice regime that we see in a copyright context, which means that anytime a victim becomes aware that [their] picture is on one of these websites without their consent, [they] can notify the website, [they] can notify Google, [they] could notify all the people inadvertently helping the image get shown... that this is nonconsensual material and needs to be taken down."
Well, that didn’t take long at all. In their zeal to end revenge porn, which no one disputes is a blight on the internet, Franks and her ilk are more than happy to destroy free speech on the internet. After all, what’s free speech when compared to their feelings?The US News article also contains quotes from Matt Zimmerman, senior staff attorney at the EFF, who logically points out that targeting intermediaries by bypassing (or removing) Section 230 protection is a terrible idea and will inflict collateral damage all over the internet. As he points out, companies will simply remove user content as quickly as possible whenever requested rather than be held legally or criminally accountable for hosting it. Additionally, there's a good chance some platforms and hosting services will simply shut down altogether rather than have to play internet police 24/7.
Franks "rebutted" Zimmerman's assertion, but from an oblique angle.
I do want to point out that neither the EFF nor the ACLU has expressed opposition to any specific law that I have personally drafted. I have sent my draft statutes to members of both organizations and am awaiting their responses.Well, if the EFF and ACLU don't think it's a bad idea… Oh, wait. That's not what she actually said. Greenfield breaks it down.
Notice the attempt to weasel out of reality, “any specific law that I have personally drafted”? Franks neglects to mention that she sent an email to an EFF non-lawyer advocate, who was never an appropriate person to contact and who didn’t respond to her personal email, and has tried to parlay this by claiming these organizations don’t oppose her, in a deliberate effort to mislead.Franks is looking to do some serious damage to free speech with her proposed law. While it could be theorized that courts will buy her arguments about what the First Amendment does and doesn't protect (troubling in its own way), this proposed attack on Section 230 Safe Harbor is bad news no matter how you look at it. The fact that she brings up child pornography is another indication that advocating for this law has very little to do with ensuring standing protections remain as unscathed as possible.
Politicians and special interest groups have often used "for the children" as an excuse for all sorts of legislative havoc. After all, who's going to defend child pornography? It's a disingenuous rhetorical tactic that equates Pet Issue A with The Worst Thing on the Internet in order to paint opponents as child porn sympathizers. But as Greenfield says, what are rights compared to feelings? Revenge porn is bad, and those arguing against legislative measures like Franks' are frequently portrayed as misogynists trying to ensure their abuse of women continues uninterrupted. Here's Franks herself on the subject:
But then there’s a whole category of people who aren’t confused at all – let’s call this the “threatened sexist” category. To explain this, we have to back up a bit and take note of the fact that non-consensual pornography, like rape, domestic violence, and sexual harassment, is overwhelmingly (though of course not exclusively) targeted at women and girls. So you get some people who might cynically invoke the First Amendment or raise disingenuous questions about scope, but who are really just hostile to anything that makes it harder to treat women as second-class citizens, especially when it comes to sex.There's also some indication that Franks, like many others who aggressively advocate for laws that will fundamentally alter the way the internet runs, doesn't have a solid grasp on the very area she's attempting to regulate. She makes the following statement, which follows shortly after her above assertion that opponents will make "cynical arguments" about the First Amendment.
These are people who fully understand that a great number of our personal, social, and legal interactions are premised on the idea of contextual consent. They would never argue that a customer who gives his credit card to a waiter has given the waiter the right to use that credit card to buy himself a motorcycle. They would never argue that the fact that a person voluntarily gave personal information to a cellphone gives that provider the right to hand that information over to, say, the NSA.As commenter Ken Arromdee points out, this statement is beyond obtuse.
You do realize that this is known as the third party doctrine, and is the actual reason used to justify government spying, right?Greenfield asks when other law professors are going to step up and call Franks out for her bullshit. The answer, sadly, may be "never." Franks' own statements show she's more than willing to call any opponent a misogynist, something that can easily spell the end of an academic career. No one in this field is in a hurry to get smeared as a revenge/child porn proponent. Even more discouraging -- if this legislation ever hits the floor for a vote -- very few politicians will be willing to oppose this and end up labeled misogynist or simply "soft" on revenge porn, no matter how damaging the outcome will be for the First Amendment and the Section 230 Safe Harbors.
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Filed Under: free speech, mary anne franks, revenge porn, secondary liability, section 230
Reader Comments
The First Word
“Adolf Hitler -Mein Kampf,
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if he/she really wanted to fuck things up, using 'the children' as the excuse, she should get in touch with Perry and Cameron in the UK. they have used little in the way of sense, even common sense, to achieve copyright infringement and web site blocking by instigating the 'we must think of the children' bit!
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We need to expose them and boot them out in the next election.
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I also wouldn't have a problem with a notice and takedown system for revenge porn if you could demonstrate it's you in the video, where liability is only faced after failure to comply to legitimate requests.
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Revenge porn can be just about any sexual thing, from you being exposed in a Nazi party with hookers(political scandal) to a fan of Bieber posting photos of him sleeping in his hotel bed/
Hardcore stuff may be easy but there are other shades of grey out there that would be also be made illegal, you no longer would be able to expose bestiallity acts that offend others, could a rapist force others to remove his photos from public and takedown?
You know he is being after all being harassed for having had sex and somebody posted his photos there.
Those laws look cool and fine until you look at the real shite that goes on and realize that a lot of crap would be included and even ones that people really object too.
This laws could give real pedophiles the tools they need to bring down other laws, they could takedown the government websites on those claims.
People should be preocupied not how the law will be used by mostly honest people but exploited by real crooks and criminals.
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?
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Adolf Hitler -Mein Kampf,
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Damn straight, AC. Add Marx, Lenin, and Mao to the mix. Pretentious and polemic or not, we need to understand those guys too. And that there is not a choice between only one group or the other. The answer is probably somewhere in the middle and as far away from authoritarianism from either side as possible.
Once we've figured that out we'll realize the beauty of thinking for ourselves. Unfortunately, many of us feel obliged not only to take sides with extremists of one stripe or another, but to make others do so, too. Let's not do that.
Even crap has its uses. Look for the grain of good in everything and don't be too quick to throw the baby out with the bathwater.
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"The perverts must declare speech to be the most precious treasure of the people. As long as the speech is perceived as working for the benefit of the people, the people will happily endure almost any abuse of the self and almost any humiliation." - Anonymous Revenge Porn Maker, I Destroy Lives, p36
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Or...
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What's good for the goose
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Re: What's good for the goose
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And no, as far as I know non-consensual disclosure of sexually-explicit material for the purposes of harming the subject isn't legal. It's not a crime, but it's a civil violation that the victim has a right to sue over. Actively soliciting for people to do it is in the same category as actively soliciting people to violate their non-disclosure or confidentiality agreements and provide you with confidential/secret information from their employers.
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If the content is legal, then even if it's offensive, free speech takes priority, as it's more important.
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The road to Hell
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Examples she uses
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Re: Examples she uses
Yeah, I don't get it either.
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Irony or cognitive dissonance?
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For the..?
I very much doubt that what they want is what's being given in their names. I strongly suspect that it is, in fact, 'for the parents' (votes).' Which is definitely not the same thing.
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Is Mary Anne Franks trying to protect pedophiles and rapists from having their wrongs exposed?
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If you can't beat them...
Is there any way we could start spreading around the message "if you're a copyright maximalist and you don't support the fundamental rights of Internet users and computer owners, you're a child-porn-producing terrorist"?
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Re: If you can't beat them...
Start with a credulous, cheering audience, then keep going till it's accepted as a mainstream belief.
Hell, it works for the maximalists.
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The big question is.....
(Sorry I just could not help myself)
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Re: The big question is.....
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How is any of that "collateral damage"? Having content taken down immediately upon request and entire sites/services shutting down rather than hosting user content is the entire goal of this bill.
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