Federal Revenge Porn Bill Will Look To Criminalize Websites
from the dangerous-step dept
My own representative in Congress, Jackie Speier, has apparently decided to introduce a federal "revenge porn" bill, which is being drafted, in part, by Prof. Mary Anne Franks, who has flat out admitted that her goal is to undermine Section 230 protections for websites (protecting them from liability of actions by third parties) to make them liable for others' actions. Now, I've never written about Franks before, but the last time I linked to a story about her in a different post, she went ballistic on Twitter, attacking me in all sorts of misleading ways. So, let me just be very clear about this. Here's what she has said:"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."That makes it clear her intent is to undermine Section 230 and make third parties -- like "Google, any website, Verizon... face liability."
Now, her retort to all of this is likely that she's not seeking to undermine Section 230 in any way. Rather, she's attempting to do something of an end-run around it. Section 230 has never protected sites from liability of federal crimes -- just civil infractions and state crimes. So her goal is to make the amorphous concept of "revenge porn" a "federal crime" thereby suddenly making third-party websites liable. She will argue that does nothing to undermine Section 230. A more reasoned and thoughtful look at the issue, however, shows how this effort is fraught with dangerous consequences and potential First Amendment problems.
Taking a step back, though, let's be clear: revenge porn -- the practice of posting naked pictures of someone (who likely took those photos for an individual or themselves, rather than the public) along with that person's identifying information -- is odious. Those who are involved in the practice are morally repugnant individuals. And yet, what we've seen is that there do appear to be ways to deal with them. One of the most well-known creators of revenge porn, Hunter Moore, was recently arrested on charges that he conspired with another person to hack into email accounts to get more photos. Often, those engaged in revenge porn are also engaged in extortion over those images or other crimes on which they can be charged. Some revenge porn sites have been hit with lawsuits for copyright infringement -- though that creates a whole different set of problems.
Meanwhile, amazing folks like Adam Steinbaugh have been diligently tracking down and exposing the details of people who operate revenge porn sites, which can sometimes be an effective (if slightly ironic) way to get them to go away. But that's an example where more speech is often a better result than censoring speech by increasing liability.
Still, you can see why there's a temptation to create a new anti-revenge porn statute. The whole concept of revenge porn is itself repugnant, so it's tempting (especially as a lawmaker) to pull out that old hammer and create some regulations. But the dangers of regulating based on reacting to the odiousness of those sites may obscure the way such laws will inevitably -- as Prof. Franks herself admits -- impact companies that are clearly not engaged in revenge porn.
In the article about the legislation, EFF's Matt Zimmerman (who, actually, just left EFF) points out that using criminal law here is "dangerous" because it would likely lead lots of companies to reflexively delete all sorts of content, including plenty of perfectly legal and legitimate content, to avoid the sort of liability Franks describes. And that's the huge problem here. 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.
People who don't think through the details seem to assume that it must be easy to define what is "revenge porn," but the deeper you go, the more difficult it becomes to define -- and the more risks there are of both over-criminalizing and creating serious First Amendment issues. For example, you could say that sites should be forced to take down photos of individuals where those individuals insist that the photos are problematic. But then you'd have to deal with situations, like with Ranaan Katz, where he went after a blogger and Google (using civil copyright law) for posting an "unflattering" photo. Do we really want to bring criminal law into that arena?
And the First Amendment issue is not easy to get around. At all. As lawyer Mark Bennett discussed in trying to create a First Amendment-compliant anti-revenge-porn statute, it's not an easy challenge:
The First Amendment problem we face is that “posting nude or explicit images of former lovers online” is speech; a statute focused on such posting is a content-based regulation of speech; content-based regulations of speech are presumed to be invalid (that is, speech is presumed to be protected); and the Supreme Court in U.S. v. Stevens expressly rejected a balancing test for content-based criminal laws, instead applying a categorical test.At best, Bennett tries, as an exercise, to see if it would be possible to extend obscenity laws to cover "revenge porn," but that would massively expand obscenity laws, again in potentially dangerous ways. The problem here is that pretty much everyone agrees that revenge porn is a really horrible thing -- but any attempt to criminalize it will have serious implications way beyond the targeted issue.
Instead of following Franks down that dangerous road, it would be wise to focus on ways to use existing laws to go after those who are clearly engaged in related questionable behaviors. Changing the laws to put the burden on third parties is only going to create significant new problems. I'm disappointed that my own Representative in Congress, Jackie Speier, appears to not realize this, and I will be contacting her office to express my concerns about the bill.
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Filed Under: cda, first amendment, jackie speier, liability, mark bennett, mary anne franks, revenge porn, section 230, speech
Reader Comments
The First Word
“Security issues make this a non-starter
Before I begin: I agree with Mike and probably with most people that revenge porn site operators are assholes. So with that out of the way:We're operating in an environment rife with security issues. We live in a time of daily mass data breaches, hundreds of millions of bots, fiendishly clever malware, software loaded with accidental security holes, and software loaded with deliberate security holes (thanks NSA).
Because of all this (and more that I won't bother to enumerate) there is no way to know who is actually responsible for the appearance of revenge porn (or any other content for that matter) online. Consider these scenarios:
1. A and B are dating. A shares naughty photos with B. A and B break up. A posts the photos and blames B.
2. A and B are dating. B has access to A's computer. B posts A's naughty photos from A's computer just before breaking up.
3. A and B are dating. A shares naughty photos with B. A and B break up. A dates and shares naughty photos with C. C gets hacked, naughty photos show up online, C blames B.
4. A and B are dating. A shares naughty photos with B via one of the many insecure file hosting sites. The site gets hacked. A blames B.
5. A and B are dating. A shares naughty photos with B. B sells her computer without wiping the disk drives. A blames B.
6. A and B are dating. A shares naughty photos with B, who has them on a laptop going through customs where it is confiscated and imaged. One of the techs working for customs sells the photos. A blames B.
There are many variations on this theme. But what they all have in common is that they make it essentially impossible to assign attribution for the action to the person who actually did it. There are two reasons for this: one being the myriad security issues, the other being that a digital copy is a copy is an original.
If this ill-conceived law (or any of the other similarly misguided ones that have been proposed) are enacted, two things will happen: first, people who are completely innocent will be convicted by prosecutors eager to demonstrate their tech savvy and grandstand a bit before election time. (See "Julie Amero" for a case study.) Second, people who are completely guilty but technologically adept will escape unscathed.
Revenge porn is awful. But this is not the way. It simply Will Not Work.
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But you know, we added the "on the internet" arcane suffix in the mix. Suddenly new laws are needed for old problems.
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Existing Laws
Good legislators will protect us from new laws like this one. Are there any in our government?
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Still a potential can of worms. How about the celebrity gossip site that solicits photos of celebrities, and some of those show celebrities in a less than flattering light. How do you distinguish that situation?
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And most celebrity-gossip sites would still be in the clear. They might be asking for embarrassing/unflattering material, but they wouldn't be asking specifically for material the subjects expected wouldn't be public. Much of it would be shots taken in public areas where there's no specific ban on photography or snapping videos with cel phones. And the site wouldn't be demanding payment as a condition of taking anything down. They might argue that the celebrities had no expectation of privacy when the photos were taken and so no right to demand the photos not be published, but the gossip sites aren't typically trying to extort payment to not show the photos.
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By "loophole" you mean "extremely important 1st amendment protection"?
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So... Gawker and the Toronto Star would be in *criminal* trouble for posting photos of Toronto Mayor Rob Ford smoking crack in a private home?
Or... what about Chad Hurley taking a short video at Kim Kardashian and Kanye West's wedding and posting it online. That was a private event.
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She had an expectation of privacy, didn't she?
That was WAY out of line, but every paper that got hold of them published them.
Being a celebrity shouldn't exempt you from a right to privacy.
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How do you identify revenge porn?
There's just no way to tell "revenge porn" apart from "regular porn" without knowing when and how the content was released. Holding providers responsible would only encourage them to delete all pornographic images, either immediately or upon request, in order to avoid liability for something that isn't their fault and they couldn't possibly identify without either being psychic or taking all complaints at face value.
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Re: How do you identify revenge porn?
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They would really be better off getting the FBI back on white collar and interstate crime rather than terrorism, then to shovel out this kind of dreck legislation.
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That would be a terrible definition of pornography.
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So then...
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Re: So then...
I am sure that those pictured did not sign release forms.
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Italics Added.
Anybody else noticed that she wants to make ISP's responsible for carrying revenge porn, and presumably hosting providers as well?
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And once again if we yield under pressure from a segment of society, which claims moral superiority over others will have added repercussions in the future. It also infringes on personal privacy and one's own choices and can only be described as a form of censorship.
This almost feels like a version of SOPA light.
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Security issues make this a non-starter
We're operating in an environment rife with security issues. We live in a time of daily mass data breaches, hundreds of millions of bots, fiendishly clever malware, software loaded with accidental security holes, and software loaded with deliberate security holes (thanks NSA).
Because of all this (and more that I won't bother to enumerate) there is no way to know who is actually responsible for the appearance of revenge porn (or any other content for that matter) online. Consider these scenarios:
1. A and B are dating. A shares naughty photos with B. A and B break up. A posts the photos and blames B.
2. A and B are dating. B has access to A's computer. B posts A's naughty photos from A's computer just before breaking up.
3. A and B are dating. A shares naughty photos with B. A and B break up. A dates and shares naughty photos with C. C gets hacked, naughty photos show up online, C blames B.
4. A and B are dating. A shares naughty photos with B via one of the many insecure file hosting sites. The site gets hacked. A blames B.
5. A and B are dating. A shares naughty photos with B. B sells her computer without wiping the disk drives. A blames B.
6. A and B are dating. A shares naughty photos with B, who has them on a laptop going through customs where it is confiscated and imaged. One of the techs working for customs sells the photos. A blames B.
There are many variations on this theme. But what they all have in common is that they make it essentially impossible to assign attribution for the action to the person who actually did it. There are two reasons for this: one being the myriad security issues, the other being that a digital copy is a copy is an original.
If this ill-conceived law (or any of the other similarly misguided ones that have been proposed) are enacted, two things will happen: first, people who are completely innocent will be convicted by prosecutors eager to demonstrate their tech savvy and grandstand a bit before election time. (See "Julie Amero" for a case study.) Second, people who are completely guilty but technologically adept will escape unscathed.
Revenge porn is awful. But this is not the way. It simply Will Not Work.
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All the good laws have been passed
Make it a crime to steal photos? Already done- it's called theft.
Make it a crime to hack into a computer? Already done.
Make it a crime to ask for money to delete photos? Already done- it's called extortion.
So what's a lawmaker to do when her constituents tell her to do "something"? Why, make new laws that are overly broad and will have chilling effects down the road. But remember, she did "something".
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Re: All the good laws have been passed
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Looks like if you REALLY want your significant other to have that naughty photo, you should take it yourself so you retain distribution rights. If you let THEM take it, it's up to the other person to decide who gets to see it and who no longer gets to see it.
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Re: All the good laws have been passed
Taking down photos is legal, as is asking for money, so I think this is blackmail.
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Extortion is taking someone money (Is Illegal, except for government) through for force.
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I got this one dealt with already folks, So don't worry!
"If you don't knock off this revenge porn stuff, I'm gonna post up those pictures you let me take of you completing the big dildo challenge last week. OK?"
So I think it'll just sort of take care of its' self.
p.s. By the way, the pics are kinda hot, So I'm sorta hoping she calls my bluff.
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Re: I got this one dealt with already folks, So don't worry!
Oh, and hurry, before third party liability becomes de facto.
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Re: Re: I got this one dealt with already folks, So don't worry!
http://www.rickmercer.com/Photo-Challenge.aspx
All you need to do is get someone with news creds to host it, apparently :)
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Re: I got this one dealt with already folks, So don't worry!
I denounce myself.
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Never LET...
~Typical Politician
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Mary Anne Franks is a poor legislative drafter
Although it likely won't matter to Jackie Speier, for the dignity of Congress if no other reason I hope that someone more competent than Franks is drafting any "revenge porn" law Speier intends to propose.
Neither Franks' remarks (at her blog) nor Speier's (as reported) give me any hope that either of them has figured out how to finesse the "time of consent" problem. If a model consents to a photo and cannot later rescind or revoke that consent, then a new law against posting un-consented-to photos won't do much.* If a new law says a model can revoke "consent" to a photo long after it has been made and distributed-- thereby criminalizing further possession and "dissemination"-- then prosecutions would obviously violate due process because of the private "spooky action at a distance" which would make a given photo contraband without even legislative, much less actual, notice to persons who obtained the photo when it was "consented-to" and could never know (before they were indicted) that consent to that photo had been rescinded by the model at some later time.
*A new law might criminalize taking immodest photos without the model's consent, but State peeping-tom laws already cover that sort of thing so a Federal law would be nearly pointless. Though pointless, such a new Federal law would not be harmless, because prosecutors would use it to subject people to indictments and trials regardless of justice or reason.
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Road to hell something something 'good' intentions.
And that Adam guy, he is trouble.
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This then removes the full 'obscenity' ambiguity, allows Community standards of what the 'average' contemporary person thinks and allows the privacy aspect (which is the second issue these matters - with revenge/harrassment being the first) to be dealt with.
Plug in a bit of "knowingly allow" & maybe "intent to distribute" and you should have a workable statute that could meet the first amendment problems. Though a strict definition of what "community" means and some non ambiguous defenses based around "public figures, public interest etc, lack of intent, etc." would also make it more robust and able to have discretionary reasonableness applied.
Just an idea.. though I would say if this sort of thing came into affect it would need to have a sunset clause unless a review every 4-5 yrs (community standards change) is initiated.
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Though s230 is really only for civil problems.. making this a criminal statute would set the bar very high to prove a provider (ie: Google) was also vicariously liable and/or negligent.
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Safe harbors must go
* Sue telephone companies for calls from advertisers who ignore the do-not-call lists
* Sue chemical companies for the actions of contractors who dispose of waste improperly
* Sue clothing providers for abuses of their suppliers overseas
* Sue record companies for the raw lyrics of rappers
* Sue power companies for food destroyed by prolonged power outages due to poorly maintained equipment
* Sue toll agencies for accidents caused by other drivers on the tollways
* Sue landlords for losses due to fires caused by other tenants
* Sue banks for losses caused by mortgagors
I think this would be a "wonderful" boon to mankind; and I think someone should carefully explain this to the Honorable Representative Speier and to Professor Franks.
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tl;dr : If you take nude pics, they WILL go on the Web
As for stalkers, if they're so disconnected that they come to people in meatspace, then photograph them and post their pics with SEX OFFENDER written on them. On their facebooks. Do that enough times and they will learn to stay home and fap instead of bothering others.
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State Legislation
http://www.billtrack50.com/PublicStakeholder/u2CMmTU3dUm0MTyIp_wAqw
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Who is the real jerk?
The big assholes are legislators who knowingly make laws absolutely intended to chill speech, who try to impose liability on innocent people who have only the most tenuous connection to illegal behavior, who try to use student council level procedural shenanigans to impose their wretched will everybody everywhere.
So yes, I'm saying that Rep. Mary Ann Franks is a big asshole. And I feel vengeful while I say it. Is that revenge porn? I'll bet she thinks it is. So this website, it's host, it's internet provider and my internet provider are all liable for something that I absolutely intend to be political speech with absolutely no intent of any harm except to make the Representative feel ashamed of her motives.
I'm a free-born American citizen and I feel nervous saying something that it is my birthright to say. That is, as far away as I am, I feel the chilling effect.
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Are people really this stupid?
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Re: Are people really this stupid?
Yet it's arguably lingering conservative values that make it so emotionally damaging. While revenge porn is never morally OK, why does society have to double down on the damage by judging the photos as shameful for being sexual in nature?
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The latter is all about revenge, and stopping at just porn doesn't mean that sometime later the politicians will want to shut down "free speech" sites for the enabling of revenge porn that persists there.
A lot of "porn" things on the internet are already stolen and already fall under a DMCA takedown, just people are too damn embarassed to fill out a DMCA form because that is an admission of guilt that gets attached to their name. Revenge porn sites also post badly formed DMCA notices and legal threats so google can find them, thus making the person trying to take down the image the target of further mockery.
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Laws to prevent cyberstalking/Extortion and Revenge Porn
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Re: Laws to prevent cyberstalking/Extortion and Revenge Porn
Who are you addressing who wants that?
Some of this stuff comes from foreign sources who want to destabilize our country and that should make you wake up!!
Destabilizing the country via revenge porn? Are you nuts?
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