Keith Alexander: NSA Makes The Entire Internet Weaker To Protect You From Terrorists

Will Broadly-Written 'Revenge Porn' Laws Encourage Shady Law Firms To Engage In 'Revenge Porn' Trolling?

from the a-brand-new-set-of-exploits dept

Thu, May 8th 2014 9:54am — Tim Cushing

"Revenge porn" laws are universally badly and broadly written, prone to all sorts of unintended consequences that will punish First Amendment-protected speech with increasingly harsh sentences. Arizona's new "revenge porn" law equates the offense with domestic violence, filing under Chapter 14 of state law ("Sexual Offenses").

This law has the potential to create a new, ultra-nefarious level of "revenge porn trolling" by entities with the same moral turpitude as Prenda and Malibu Media, both of which have actively explored the outer limits of copyright law in their extortionate efforts. Arizona's new "revenge porn" law gives these sorts of entities a new form of leverage to use against unwary infringers.

The law contains wording that would implicate anyone who "intentionally discloses, displays, distributes, publishes, advertises or offers" any form of media depicting sexual activity or nudity "if the person knows or should have known that the depicted person has not consented to the disclosure."

By definition, copyright infringement is "disclosing without consent." You can't infringe if you have permission.

True, there is an exception that excludes "images involving voluntary exposure in a public or commercial setting." This would seem to exclude professional pornography, but that would also seem to be outweighed by the "consent" referenced in the law's opening paragraph.

This potentially creates a loophole for porn producers (or rather, their legal representation) to pursue the non-consensual republication of their content.

What would be scarier for the non-aware infringer to receive? A demand letter referencing potential infringement damages or a demand letter referencing potential felony charges for sexual offenses?

It wouldn't take much to set up a honeypot. Just a few amateurish-looking shots and maybe a quick and dirty site with a revenge porn-ish look. With even less effort, photos and video could be scattered across the web containing faux contact info -- anything to make them look like the sort of thing the bill targets. And if the info comes out that a law firm/porn producer was behind the content, they can always fall back on copyright.

Even without a honeypot, there's still the question of consent. If Arizonan X post infringing pics and video to his tumblr, he is definitely circumventing the depicted person(s) "consent." The law only specifies that the posting person "knows or should have known" that the depicted person did not consent to this "disclosure." Consent given to a porn producer is not consent given to the public for distribution.

Granted, criminal prosecution won't result in monetary reward for trolls, but trolling endgame has never been the courtroom. The judicial system is the last resort. The real money is in demand letters, and Arizona's new bill will give them plenty of legal threats to use.

[Side note: this doesn't even address what the law does -- in fact, what all these laws do -- to the tangled legalities of amateur porn. If consenting adults post consensual images and video of their sexual activities, what happens when one of the parties revokes consent after the fact? Does this make the posted material instantly illegal? There's no wording in Arizona's law that addresses this form of consent (that language was dropped, along with wording about newsworthy postings). Professional porn would have explicit language dealing with consent, but amateur efforts would obviously be devoid of contractual stipulations.

No doubt advocates of this law would consider the revocation of consent by one party to be sufficient enough for prosecution, but this should make anyone in the affected states wary about engaging in recorded sexual activities -- even more so than "revenge porn" itself does.]

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Filed Under: arizona, honey pots, revenge porn, trolling

24 Comments

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Ninja (profile), 8 May 2014 @ 9:52am

Existing laws wouldn't punish a person that pasted physical pictures of someone in a public space for sure, right? But hey, "one the internet" was added so let's throw facts and reason through the window and use our Hammer of the Law�!
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Anonymous Coward, 8 May 2014 @ 9:57am

What would be scarier for the non-aware infringer to receive? A demand letter referencing potential infringement damages or a demand letter referencing potential felony charges for sexual offenses?

If you had a letter demanding money in exchange for not pressing criminal charges, I believe there is a word for that. That word is "extortion". Would any law firm really be dumb enough to put it in writing?
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Anonymous Coward, 8 May 2014 @ 10:05am

Re:
Would any law firm really be dumb enough to put it in writing?

Why NOT? It's clearly been an enormously profitable tactic for many of them. The chances that they'll be called for it are small. The chances that they'll face consequences for it are smaller. The chances that they'll have to give up a significant fraction of the profits are still smaller.

So why not roll the dice and try it? Look, Prenda only botched this because of their hubris and overreach. It wouldn't take much for someone to copy their "business model" and just dial back enough to stay under the radar (and out of the site of any curious judges). And in this area, where judges are (mostly) tech-illiterate and the public eager to see ZOMG SEX OFFENDERS!! prosecuted, why not?
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Michael, 8 May 2014 @ 10:06am

"intentionally discloses, displays, distributes, publishes, advertises or offers" any form of media depicting sexual activity or nudity "if the person knows or should have known that the depicted person has not consented to the disclosure."

What about drawings or paintings? We are all talking about video and pictures, but any form of media "depicting" includes a lot of other things.

And yes, the revoking of consent could be huge - what if I get a tattoo of my girlfriend topless and then she decides to withdraw consent?
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Michael, 8 May 2014 @ 10:10am

Re:
I'm pretty sure you see a similar threat every time you watch a DVD.

Informing someone of a law without explicitly accusing them of violating it is perfectly legal.
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S. T. Stone, 8 May 2014 @ 10:11am

Great. Just what we all need.

Prevengeda.
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Anonymous Coward, 8 May 2014 @ 10:34am

Re:
Coming soon to a Techdirt page near you!

First we brought you Getty, then Prenda but you have not seen anything until you see our latest...Prevengeda!

Just when you thought it was safe to put down the popcorn bowel, Prevengeda!

This article is not yet rated.
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PT (profile), 8 May 2014 @ 10:52am

Relax, it's Arizona. Those crazy, wacky folks down there just want to get their state back on national television now the ok-to-discriminate-against-gays thing has run its course.
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Anonymous Coward, 8 May 2014 @ 11:01am

Re: Re:
And in this area, where judges are (mostly) tech-illiterate

Tech-illiterate doesn't matter. It's flat-out illegal - a felony, actually, at least in my state - to tell someone that you'll prosecute them unless they pay you. A judge does not need to understand technology to know that.
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Anonymous Coward, 8 May 2014 @ 11:05am

One problem with your theory there....
Although it gives the trolls the ability to add more frightening language about how the recipient could end up with a felony conviction and face jail time to their threat letters adding to the scare factor in the same way that the DMCA bolstered the threats from the MPAA and RIAA's attorneys, unlike the MPAA and RIAA, the trolls don't actually have their own private police force (ie. ICE and DOJ) that can get criminal charges brought against the individual to actually carry out their threats with regard to these laws.
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Anonymous Coward, 8 May 2014 @ 11:09am

Steal
John Steele thanks you for his new business plan.
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Anonymous Coward, 8 May 2014 @ 11:12am

Re: Re: Re:
They don't say that they will prosecute them. They merely state that they COULD FACE criminal prosecution of felony charges which could include x amount of jail time. It's only an implication designed used as a scare tactic.
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Anonymous Coward, 8 May 2014 @ 11:20am

Re:
The law specifies "photograph, videotape, film or digital recording". So I think the painting is safe, as is the tattoo.
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Chronno S. Trigger (profile), 8 May 2014 @ 11:42am

Re: One problem with your theory there....
"the trolls don't actually have their own private police force (ie. ICE and DOJ) that can get criminal charges brought against the individual to actually carry out their threats with regard to these laws."

That really doesn't matter when you're looking at legal paperwork. Just the threat is bad enough.

I had a similar problem recently. I was a witness to a car accident and was called in to testify. A few days before the trial, I got rescheduling paperwork. It said:

"Dear (my name),

"We have received your plea of not guilty..."

Then it went on to list charges and possible punishment. I'm a smart guy, I knew I wasn't being charged, but that's not what the paperwork said. It scared me into trying to get it fixed instantly. Turns out our court system is really fucked up, they basically send that form letter to everyone involved.
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Anonymous Coward, 8 May 2014 @ 12:04pm

Re: Re: One problem with your theory there....
I've seen scare tactics sent by attorneys contracted by the city to handle outstanding traffic cases that claimed a warrant had been issued for arrest where no such warrant had been issued which was simply verified by calling the court clerks office to inquire if such a warrant had indeed been issued.
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Anonymous Coward, 8 May 2014 @ 1:25pm

For this class of image, no public domain protection
"if the person knows or should have known that the depicted person has not consented to the disclosure."

So all my pictures of Marylin Monroe suddenly cannot be shown, because the dead cannot give consent. No waiver based on the mortality status of the person depicted.

Copyright is limited to "life + 70/100 years" currently. There is no such time-based limitation in the law.
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Chronno S. Trigger (profile), 8 May 2014 @ 1:27pm

Re: Re: Re: One problem with your theory there....
That's exactly what I did, but by the time I got the letter, the office was closed. For the entire weekend I was freaked out.

If push came to shove, I have access to a team of lawyers that wouldn't even blink at a mix up like that. Even then, I would rather not go threw that again. Makes me rethink being a good citizen.

I feel sorry for those who are on the wrong end of those letters. It would be vary tempting to take the easy road and just pay up rather then risk facing a judge.
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OldMugwump (profile), 8 May 2014 @ 3:12pm

Re: "if the person knows or should have known that the depicted person has not consented to the disclosure."
It seems to me that if a person poses for a professional photographer (pornographer, whatever), there is normally a model release or similar giving the photographer consent of the model. Otherwise, what is the point?

So the very fact that something is professionally-made porno, tells the viewer that the model has given consent.

I don't see the problem here. Am I hopelessly confused?
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Anonymous, 8 May 2014 @ 4:27pm

Re: Re
Dude, you're not making any sense.
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Anonymous, 8 May 2014 @ 4:29pm

Re: Re:
* Flashes headlights *
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Anonymous Coward, 8 May 2014 @ 4:48pm

"The law contains wording that would implicate anyone who 'intentionally discloses, displays, distributes, publishes, advertises or offers'..."

I'm sorry, but this entire article doesn't make sense to me.

If the porn company who is distributing the porn dvd (or .mpg files, or pictures, or whatever... choose your poison) knows, or should have known, that the model in their specific porn movie has NOT CONSENTED to being in the porn, then how can they legally claim copyright infringement?

They're the ones who are committing a felony... specifically, by selling a porn dvd where the model did not consent to being in the porn.
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Anonymous Coward, 8 May 2014 @ 8:29pm

Re:
He's saying that infringing copies, and only those, are distributed without consent. Clearly that would go against the intent of the law. I would hope that juries would refuse to convict even if the judge allowed the prosecution.
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That Anonymous Coward (profile), 8 May 2014 @ 11:52pm

To answer the question from the headline...

is water wet?
is sky blue?
do we have lawyers answering freaking ads on craigslist to make money?
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Whatever, 9 May 2014 @ 3:21am

not a big deal for real porn sites
It's not a big deal for real porn sites, which are limited by USC 18 section 2256 and 2257, including model releases and model identification. It's an issue for "user submitted" sites and chat boards which has quite a bit of questionable shot at the beach, public upskirt, and other material that likely comes with no model release, no consent.
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