The Completely Nonsensical Differences In Punishment For Revenge Porn Kings

from the none-of-this-makes-sense dept

Earlier this week, Hunter Moore -- the guy who basically invented the concept of revenge porn with his "Is Anyone Up" site -- was sentenced to two-and-a-half years in jail along with a $2,000 fine... and he has to pay $145.70 in "restitution" to a single victim. Moore was arrested for violating the CFAA, and as we noted at the time, it may be one of the few legitimate uses of the CFAA. He didn't just run a revenge porn site, he hired a guy, Charlie Evens, who got a similar sentence a week ago, to hack into the computers of unsuspecting women, and swipe naked photos of them to put on his site. The sickening bit: that "$145.70" in "restitution"? That's how much Moore paid Evens (also, Evens is jointly liable for that money, meaning that Moore might not even pay it). It's difficult to understand why the $145.70 makes any sense at all as the "harm" caused to the anonymous woman "L.B." whose computer got hacked into.

As Sarah Jeong at Vice's Motherboard notes, the reason that Moore's sentence seems so light is because of the nature of the plea bargain he agreed to with the government:

The tiny amount of restitution has partly to do with Moore’s plea bargain. He pleaded guilty to counts 2 and 9 of the indictment (which had a total of fifteen counts)—one count under the Computer Fraud & Abuse Act, and one count of aggravated identity theft. Counts 2 and 9 relate only to one victim, L.B.

So because he's only guilty on those two counts, there's just that single victim. Even so, the tiny restitution seems a bit bizarre. It's also hard to square this CFAA "punishment" with a case like Matthew Keys', who was recently found guilty of sharing a password that resulted in a brief (40 minute) defacement of the LA Times website. Yet, in that case, it was argued that he caused almost a million dollars in damages, and will be sentenced next month (with the prosecution supposedly asking for something less than five years).

Meanwhile, it's still bizarre to compare the result of this case, with other similar cases. Kevin Bollaert, who created the similar revenge porn site "YouGotPosted" was originally sentenced to 18 years in jail, along with paying $15,000 in restitution -- though his sentence was later reduced to eight years in prison and another 10 years of mandatory supervision. That length of time seemed a bit extreme.

And then there's Craig Brittain, whose IsAnybodyDown website copied Hunter Moore's with a unique addition: creating a totally fake lawyer who you could pay to get your photos and information taken off the site (Bollaert copied this model from Brittain). Brittain just got off with a wrist slap, and has been busy trying to hide this fact with abusive DMCA notices, while at the same time hilariously trying to start an Uber competitor with his buddy and revenge porn collaborator, Chance Trahan, last seen pretending to be Daymond John. Trahan never got into any legal trouble for his role in the revenge porn business and, if you want to be amused, you should read his... er.... "interview" with Rolling Stone about it.

And then there's Casey Meyering, who ran WinByState (don't ask), which was another revenge porn site, that also copied Brittain's extortionate "pay us to take down your info" model, and was recently sentenced to three years in jail. It's good to see these guys getting punished, though the randomness in the punishment and sentencing seems problematic. Moore's sentencing, in particular, seems bizarre, considering that it involved the CFAA, at a time when the CFAA is widely abused to create HUGE punishments for things that many people don't think are all that bad. Moore, on the other hand, appeared to clearly violate both the spirit and letter of the CFAA for clearly bad purposes -- and gets off with something of a wrist slap in comparison.

Filed Under: casey meyering, cfaa, charlie evens, chase trahan, craig brittain, hunter moore, kevin bollaert, punishment, restitution, revenge porn

David Cameron & The Pig: Revenge Porn & The Right To Be Forgotten

from the a-whole-hog-of-a-mess dept

We've written a lot about two efforts to suppress certain kinds of content online through legal regimes: revenge porn and the right to be forgotten. In both cases (especially revenge porn), it's quite reasonable to be sympathetic to the person whose embarrassing information is just out there for anyone to see. But we're always concerned at the possibility that these new regulations or legal regimes could be misused to simply suppress information that people don't like, without any legitimate basis. We've seen a number of cases recently where we wonder about how newsworthy items could meet the definitions required to be silenced under both of these legal regimes. Whether or not anyone is actually seeking to suppress that information now, it still should lead to some concerns about cases where it could happen.

Enter UK Prime Minister David Cameron and his apparent, rumored-by-a-single source, naked late night rendezvous with the head of a dead pig.

As you may have heard, last week some details from a new book by Michael Ashcroft and Isabel Oakeshott about Cameron came out -- and the details that got everyone talking involved the possibility of this rather, um, odd encounter with a pig. It was described this way:

The biography also makes claims about the prime minister’s time at university, saying an MP had seen photographic evidence that Cameron put a “private part of his anatomy” into a dead pig’s head as part of a dining club initiation ritual.

This has resulted in all sorts of chatter, speculation, laughter and an outright denial from Cameron. Plenty of people made the slightly eerie connection to the (excellent) television series Black Mirror, whose very first (and probably most well-known) episode involves the UK Prime Minister being forced to fuck a pig on live TV. Of course, that was to save a member of the royal family who had been kidnapped, rather than some sort of weird initiation ceremony.

While David Cameron has claimed he's "too busy" to sue Lord Ashcroft over the book, there are also reports that he was quite busy prior to the book's release trying to "sabotage the book" and somehow block it.

Which leads to the question of whether or not he'd even have the ability to block such content. As we've discussed in the past, the UK has this thing known as a super injunction that has regularly been used to block any reporting on issues that might embarrass the rich and famous. Given just how frequently it's been used, it's almost surprising that it wasn't used in this case.

However, what about these more recent concepts of anti-revenge porn laws and the right to be forgotten? On the revenge porn angle, there is alleged to be a photograph of the "pig" ritual. In Lord Aschcroft's book, it's described this way. After noting that "a distinguished Oxford contemporary" told them of this event a few times, despite the two co-authors assuming it was a joke, eventually the guy gave more details, including information about who supposedly had the photographic evidence:

Some months later, he repeated it a third time, providing a little more detail. The pig’s head, he claimed, had been resting on the lap of a Piers Gaveston society member while Cameron performed the act.

The MP also gave us the dimensions of the alleged photograph, and provided the name of the individual who he claims has it in his keeping.

The owner, however, has failed to respond to our approaches. Perhaps it is a case of mistaken identity. Yet it is an elaborate story for an otherwise credible figure to invent.

For what it's worth, it is not difficult to find sites of questionable credibility claiming to possibly have the photograph in question. Under the legal definition in some "revenge porn" laws, it's quite possible that anyone passing around this photo online could be breaking such a law. As we noted with pictures of Lenny Kravitz's wardrobe malfunction, some of it is up for debate, but there's a reasonable case to be made that such a photo could be considered "revenge porn."

Obviously, this is happening in the UK, rather than the US, but just take a look at California's revenge porn law:

Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.

You could see how the person who has the original photograph might very well be guilty of that. And while some may (reasonably) argue that revealing or passing around such a photo is distasteful, should it really be against the law? It certainly appears to be a newsworthy topic according to many -- so should it be illegal?

This is, again, why we're so concerned about revenge porn laws. We readily admit that revenge porn (even if it involves the Prime Minister of the UK and a pig) is distasteful to engage in, but it still seems weird that passing on relevant evidence of something so newsworthy might, itself, be considered a crime.

And then there's the "right to be forgotten." In the original ruling at the EU's Court of Justice, it focused on saying that search engines should be forced to delete links to information that is considered "inadequate, irrelevant or excessive in relation to the purposes of the processing." One could, perhaps, make the argument that details of the Prime Minister of the UK engaged in a sexual act/hazing ritual with the severed head of a pig might possibly meet all those requirements. The ruling does include an exception for "the role played by the data subject in public life" in which case it might be decided "that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question." So, perhaps one would argue that, given Cameron's public role, the interest in the public knowing about his pig romanticizing university hazing activities would eliminate the RTBF in this case. Or at least one would hope so.

But the problem in both these cases is that it's not out of the question that courts might find one or either of the above attacks on free speech to apply here. And you can reasonably argue that what David Cameron did or did not do with a pig back at Oxford as a student isn't really all that important, and the somewhat giddy fascination by many in the press and the public is a depressing sign of our discourse these days -- but it still worries me when we start passing laws that suggest that such things might not even be allowed to be discussed publicly at all. Cameron seems to have, wisely, decided that his best course of action is to just deny the story and hope it blows over (as it likely will). However, we've spent years chronicling people who show no such restraint when embarrassing information comes out about themselves -- and it's important to watch carefully how these new legal regimes might be abused to silence legitimate reporting and free expression.

Filed Under: david cameron, eu, free speech, pig, revenge porn, right to be forgotten, uk

Are People Passing Around Images Of Lenny Kravitz's Wardrobe Malfunction Violating Revenge Porn Laws?

from the well... dept

As you may have heard... a couple weeks ago during an onstage performance, rocker Lenny Kravitz had something of a wardrobe malfunction (potentially NSFW link), in which his pants split open and he exposed himself to the audience. This has resulted in lots of discussion about a variety of topics, including from the person who is taking credit for the piercing we now all know Kravitz has.

And while Kravitz initially appeared to laugh it off, soon after, his lawyers started going after anyone sharing the images or videos, tossing out just about any ridiculous legal argument they could think of including "copyright, human rights, right-of-publicity and performer's rights." In case you're wondering, basically none of those apply, though the specifics may matter in that there may be some very, very marginal cases where some of the images may go against some right. But mostly, the lawyers are spewing nonsense. The "human rights" claim is laughable. The copyright claim is so bizarre no one's even sure what copyright he's claiming (if you're wondering, the music he was playing at the time was a cover song, so he doesn't hold the copyright on that either), but it's certainly not in the photos themselves, where the copyright belongs to the photo taker. Rights-of-publicity depend state to state, but generally are focused on things like the use of a famous person's likeness to endorse a product. That's not happening here. As for "Performer's Rights" those are, generally speaking, about rights to be reimbursed for the use of a performance -- and almost never include a right to exclude usage. A recent paper on performers' rights in Europe (where the malfunction happened...) makes it clear:

Equitable remuneration rights and the remuneration granted under exceptions and limitations to certain exclusive rights do not give rightholders the possibility to authorise or to prohibit the exploitation of their work but do at least ensure them an income.

But here's the thing: I'm somewhat surprised that Kravitz's lawyers aren't trying to argue that this is "revenge porn" and breaking the law that way? Revenge porn, or nonconsensual pornography, laws are popping up all over the US, and a federal revenge porn bill has been rumored for many, many, many, many months -- with the promise always being that it's coming "next month." In fact, just a few days ago we got the latest such promise. The latest rumors are that the bill will make it a criminal act to share a "non-consensual" image of someone's naked bits.

Which raises the question: could anyone who shared or linked to the images of videos of Lenny Kravitz's junk... possibly be a criminal?

Right now, it would depend on the state law in question. Arizona's law, which has thankfully been put on hold after the court's realized it was unconstitutional, would almost certainly make anyone in Arizona who shared the image guilty of a criminal act. It says that it's "unlawfully to intentionally disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure." And while there's an exception for "images involving voluntary exposure in a public or commercial setting," from the statements by Kravitz's lawyer, I think they'd argue this was hardly "voluntary." Arizona's law also makes the crime more serious "if the depicted person is recognizable," which, you know, he is. That would make it a "class 4 felony" subjecting someone to between six months and two years in prison for sharing the photo. Yikes. Thankfully, that law is on hold.

How about California's revenge porn law, which leaves the issue not entirely clear. Under that law, "Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person," may be violating the law, but there is a caveat that might create an out. It only applies only in situations where:

"the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress."

Do the people agree that it should remain private? Probably not, but perhaps that's an issue that Kravitz's lawyers could fight over in court. But the last line is more troubling. So long as Kravitz's lawyer argue that the distribution of the image caused "emotional distress" perhaps there's a claim here. And that seems pretty problematic. There are a few other exemptions under the law, including if "the distribution is made in the course of reporting an unlawful activity," but it's not clear that applies here either. At the very least, it seems like this could get tied up in court while people argue about it.

As for the federal law that Rep. Jackie Speier is pushing, we still don't know the specific details, but most reports say that she's been working closely with Professor Mary Anne Franks on it (note: Franks dislikes Techdirt and will all too regularly lob ad hominem attacks our way). Franks has written some draft legislation that she would like to see enacted. Under her draft bill, thankfully, Kravitz and his lawyers would have a bit more trouble putting random tweeters in jail, but it still might get dicey. It does criminalize "transferring, publishing, distributing or reproducing" an image or video that includes "intimate parts" which "means the naked genitals" -- but it has some vague exceptions:

(1) Images involving voluntary exposure in public or commercial settings; or

(2) Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.

Again, Kravitz's lawyers would clearly argue that it's not a voluntary exposure. Then that would leave open the discussion of whether or not people reposting the image did so "in the public interest." It doesn't clearly fall into any of the listed "public interest" areas, but the draft law clearly states that things are not "limited" to those areas.

And that's where it begins to get pretty damn dicey on First Amendment grounds. You end up in a position where, say, someone who retweeted such an image is not only facing potential criminal charges, but then is in the position of having the burden placed on them to argue that retweeting an amusing image of Lenny Kravitz's junk is "in the public interest." And, that's the kind of thing the First Amendment is supposed to prevent. No one should be in court needing to argue that their expression is "in the public interest." Because that's a massive can of worms.

Now, contrary to what Franks has falsely said about myself and others, I don't think that "violations of sexual privacy" are okay. But I do worry that in the rush to criminalize activity that we all agree is ridiculous and problematic, that we end up overcriminalizing things, including issues related to free expression. I'm quite happy to see that most revenge porn sites in the US are now out of business, following various legal efforts (almost none of which relied on revenge porn laws...). I'm quite happy to see folks like Adam Steinbaugh expose and ridicule those behind revenge porn sites, shining a spotlight on people who can only be described as scum of the earth for thinking such things are okay.

However, thinking that non-consensual porn is immensely problematic does not mean that we should just toss aside the First Amendment concerns with the bills that are proposed to criminalize the practice. In this case, I'm using the example of Lenny Kravitz and his wardrobe malfunction to hopefully highlight that this is not such a simple problem, and -- contrary to the argument of Franks and others -- could have some very real world consequences on issues of the First Amendment and free expression.

Filed Under: first amendment, laws, lenny kravitz, nonconsensual porn, revenge porn

Google Says It Will Remove Revenge Porn Results From Search... Raising Some Questions

from the good-intentions,-but-will-there-be-bad-results dept

Earlier today, Google announced on its website that it will now be letting the victims of revenge porn request removals from the Google search index:

Our philosophy has always been that Search should reflect the whole web. But revenge porn images are intensely personal and emotionally damaging, and serve only to degrade the victims—predominantly women. So going forward, we’ll honor requests from people to remove nude or sexually explicit images shared without their consent from Google Search results. This is a narrow and limited policy, similar to how we treat removal requests for other highly sensitive personal information, such as bank account numbers and signatures, that may surface in our search results.

In the coming weeks we’ll put up a web form people can use to submit these requests to us, and we’ll update this blog post with the link.

We know this won’t solve the problem of revenge porn—we aren’t able, of course, to remove these images from the websites themselves—but we hope that honoring people’s requests to remove such imagery from our search results can help.

If I were in Google's shoes, I would be quite tempted to institute the same policy -- and I'm supportive of things that will actually end or limit revenge porn. So I hope that this works great and that it's an effective solution both to help limit the damage to victims and in further decrease the "value" (whatever that might be) to the scum of the earth who run revenge porn sites (or who frequent them).

But... at the same time... I worry about the unintended consequences of this move. First, as Alex Byers correctly notes, this will only embolden Hollywood to mistakenly claim that this shows that Google can remove unauthorized content just as easily. That's a silly claim, because Google already does exactly this for copyright holders, thanks to the DMCA, and it takes down millions of links per year thanks to such requests. So, in some sense, this shouldn't give any more ammo to Hollywood, because all it's really doing is expanding the DMCA process to revenge porn.

My second concern, though, is that this will then embolden lawmakers into thinking that "Oh, see, we can just expand the DMCA (or something like it) to cover revenge porn." This looks like such an appealing solution if you're a politician, and Google's move will certainly be used to support it. But it's not that easy as we'll explain in the third concern. But giving politicians more reasons to expand these types of legal regimes is fraught with risk, and Google's move will almost certainly be cited as evidence that it's a perfectly reasonable strategy.

And that brings us to the third concern: this process will be abused. This is the big one. We know the DMCA is abused. It's abused widely. Every day. We report on many of those abuses. Expanding the avenues under which takedowns can be abused is going to lead to more abuse. Some will argue that such abuse is a reasonable price to pay to protect the victims of revenge porn. Copyright holders frequently argue that the abuse of the DMCA is similarly no big deal, or a reasonable level of collateral damage for protecting their copyright. It's still troubling, however, that legitimate and perfectly reasonable speech can be taken down.

Finally, the fourth big concern: in some ways, this is an extension of the "right to be forgotten" process that has gotten so much attention in Europe, though in a very specific class of cases. But, again, some will use this as evidence to argue for the expansion of the class of cases that it should cover, and that's going to lead to an awful lot of judgment calls, some of which many people may have trouble with.

In the end, I'm conflicted, but worried. I'd love to see a way to stop revenge porn, but I still worry a lot about how wide a net any "solution" casts around it. Perhaps I'm being too pessimistic, and this will actually be effectively narrowly targeted. And if so, that will be fantastic. I hope I'm wrong. But for too long we've seen too many people looking to find ways to censor all sorts of content they dislike, and to find cracks in the dam to try to push censorship agendas. And thus, while I'm fully supportive of coming up with plans to actually end revenge porn, I'm nervous that wading into this territory will only open up a path to greater censorship and dangerous unintended consequences.

Filed Under: censorship, copyright, dmca, free speech, privacy, revenge porn, right to be forgotten, search, takedowns
Companies: google

Another Revenge Porn Extortion Site Operator Going To Jail

from the random-sentencing dept

Sentencing revenge porn extortionists seems to be all over the place. Craig Brittain, who basically originated the extortionate process of not just running a revenge porn website, but combining it with a (pretending to be) separate "pay us and we'll get your naked photos taken down" service, had his wrists duly slapped by the FTC earlier this year. Shortly after that, Kevin Bollaert, who more or less copied Brittain's plan, got sentenced to 18 years in jail (which he's currently in the process of appealing). Hunter Moore, who is often credited with being the first one to set up a big revenge porn site (without the corresponding extortionate takedowns, but apparently with hiring people to hack into computers to get copies of naked photos to post), took a plea deal with somewhere between two and seven years in jail.

And, now, Casey Meyering, who also copied Brittain's plan -- almost exactly -- and who also took a plea deal a few weeks ago, has been sentenced to three years in jail (which he can't appeal, due to the plea deal). Adam Steinbaugh, who spends his spare time hunting down revenge porn operators, provides a bit of background:

In June of 2013, I documented how Meyering had ripped off an extortion scheme pioneered by another revenge porn site operator, Craig Brittain.  Meyering created Takedownhammer.info, copying Brittain’s Takedownhammer.com (word for word), and solicited payments to this “independent” service using a Google Wallet account clearly linked to Meyering’s drum-lessons business.

When Meyering was arrested in February of 2014, he was found in a Tulsa hotel room, drunk.  He subsequently told the court he was homeless, bankrupt, and had nobody to ask for financial assistance to hire an attorney.

It seems like the sentencing is all over the place with these guys. However, at the very least, it seems to have scared most revenge porn sites away from the US.

Filed Under: casey meyering, craig brittain, jail, kevin bollaert, punishment, revenge porn

UK Government Can Now Hand Out Two-Year Sentences For Revenge Porn, Online Trolling

from the another-round-of-'message-sending' dept

Revenge porn is now officially a crime in the UK, as last year's amendments to the Criminal Justice and Court Acts come into effect. This particular amendment targeting revenge porn was proposed last October.

The change will cover the sharing of images both online and offline. It will mean that images posted to social networking sites such as Facebook and Twitter will be caught by the offence, as well as those that are shared via text message. Images shared via email, on a website or the distribution of physical copies will also be caught. Those convicted will face a maximum sentence of 2 years in prison.

The offence will cover photographs or films which show people engaged in sexual activity or depicted in a sexual way or with their genitals exposed, where what is shown would not usually be seen in public. Victims and others will be able to report offences to the police to investigate. Officers will work with the Crown Prosecution Service to take forward cases for prosecution.

Fortunately, the law contains affirmative defenses, including one for journalistic entities or other disclosures in the public interest. It also appears to keep the burden of proof (mostly) where it should be: on the entity bringing the charges.

However, this amendment seems to be more borne of social pressure than actual need. Trafficking in revenge porn has been punished successfully under the UK's harassment laws. This law just feels extraneous -- a way to "do something" that increases penalties for violating existing harassment laws. There's a two-year maximum sentence attached to this amendment, which is far lower than the surprising 18 years handed to revenge porn site operator Kevin Bollaert, but far more than a previous "revenge porn" prosecution under the UK's already existing laws, which only netted a 12-week sentence.

The enacted amendments also give UK Justice Secretary Chris Grayling what he wanted: increased penalties for the crime of being a jerk online. The UK has jailed trolls before, but now the government has a new upper limit on sentencing - quadrupling the former 6-month maximum.

This revenge porn law may be less broadly-written than others we've discussed, but that slight positive is negated by the UK's vastly more limited free speech protections.

Filed Under: harassment, revenge porn, trolling, uk

Now That Basically All Revenge Porn Has Moved Out Of The US, Al Franken Says FBI Should Do Something

from the a-little-late-to-the-party,-al dept

In the last few months, the small group of slimeballs who ran revenge porn websites have mostly been taken down by the legal system. The FTC went after Craig Brittain (though, weakly). Kevin Bollaert was convicted and sentenced to 18 years in jail. And Hunter Moore took a plea deal that will send him to jail for a while. Another revenge porn purveyor, Casey Meyering is about to face a trial. Not everyone will agree with whether or not the punishments are reasonable or fair (and you can definitely argue that the difference in punishment between Brittain and Bollaert is insane -- given that Brittain appears to have done the same thing as Bollaert, and actually did it first). On top of that, platforms like Twitter and Reddit have both changed their terms of service to make it much more difficult to use either to promote revenge porn.

However, the good thing is that all of this legal activity and platform policy changes have worked in terms of making it clear that revenge porn is not a worthwhile pursuit. According to Adam Steinbaugh, who is famous for tracking down and exposing the people who run revenge porn sites, all of this activity means that almost all revenge porn sites in the US have shut down. He believes there's still one left (which we won't name here), but we'll see how long that lasts.

And... even though various states have rushed to pass anti-revenge porn laws, none of the cases above relied on such laws. Rather they used existing laws around unauthorized computer hacking and extortion to bring those individuals and sites down. And yet, we still hear from politicians who insist that we need new laws -- laws that will put important safe harbors like Section 230 at risk. Laws that may, also, run up against the First Amendment.

Apparently, even as existing laws and voluntary efforts have thankfully pushed revenge porn far away, people still want to grandstand over it. The latest is Senator Al Franken. Franken is often good on tech policy issues (though he was on the wrong side of SOPA). For reasons unknown, he's suddenly decided that revenge porn is a big issue that he needs to take on.

In a letter to FBI Director James Comey on Friday, the Minnesota Democrat said he hoped the government would ramp up its recent steps to address the problem.

You can read the letter [pdf] yourself and see. The letter notes the conviction of Hunter Moore (but not the others) and the moves by Twitter and Reddit, but somehow fails to note that these efforts have been rather successful in reducing the easy access to revenge porn. Instead, he demands more action.

In light of this, I request that you provide information on all legal authorities available to the FBI to investigate cases involving the nonconsensual disclosure of sexually explicit images and any statistics on how your authorities, including federal hacking and identity theft laws, have been used to combat conduct of this nature. Furthermore, I ask that you provide information on any limitations in current law that you have identified that may have prevented the FBI from conducting investigations and making arrests in cases of nonsconsensual disclosure of sexually explicit images.

Of course, it doesn't take that much looking to recognize that the Justice Department has, in fact, spent a lot of time going after malicious hackers who have been breaking in to phones and computers to leak nude photos. But Franken seems to ignore all of that.

Instead, the language used in the letter suggests that Franken is going to release a federal anti-revenge porn law to give the feds even more power to go after people. There have been a few such attempts in the past to put forth federal anti-revenge porn laws and they've all been very, very problematic. This is not saying that revenge porn isn't a problem -- but the "solution" in the form of legislation will have massive and dangerous consequences for free speech and innovation online -- all to deal with a problem that has already mostly been eliminated, and where further steps can easily be taken without passing dangerous new laws that undermine Section 230 of the CDA or the First Amendment. Or which would create new penalties in dangerous ways that could be abused like the CFAA.

For Senator Franken -- who often presents himself as being one of the more internet savvy politicians -- to be moving in a direction that could undermine key rules that helped make the internet what it is today is a big problem. Over the last few months we've seen how existing laws and a few small changes to existing platforms can be used to make most of these bad sites go away. Do we really need to pass sweeping new laws that will undoubtedly have serious additional consequences?

Filed Under: al franken, do something, fbi, free speech, revenge porn, section 230

Revenge Porn Site Owner Kevin Bollaert Sentenced To 18 Years In Prison

from the could-Section-230-free-him? dept

As was noted here in early February, a California court found revenge porn site owner Kevin Bollaert guilty of six counts of extortion, along with 21 counts of identity fraud. Bollaert not only ran revenge porn site YouGotPosted but also operated ChangeMyReputation, from which he would remove photos posted to his revenge porn site for a fee.

Adam Steinbaugh attended Bollaert's sentencing last Friday, tweeting out his observations and insights, including fun facts like:

• Bollaert had $20,000 in cash on him when arrested, apparently from his ChangeMyReputation sideline.
• Bollaert apparently believed Obama would pass restrictive gun laws that would make certain firearms extra valuable, and began stockpiling weapons. But buying 31 guns using only a P.O. Box for an address has a way of attracting ATF agents…and a conviction for making false statements in connection with the purchase of a firearm.
• During sentencing, Bollaert's attorneys mentioned the FTC's wristslap of Craig Brittain as an argument that Bollaert deserved a similarly light punishment.
• The judge quoted an interview with Bollaert where he blew off Marc Randazza's lawsuits.
• A Cub Scout observed the sentencing.

More than six hours after the proceedings began, the judge handed down Bollaert's sentence. A wrist slap it is not.

Kevin Bollaert was sentenced by a San Diego court to 18 years in prison following his February conviction on twenty-seven counts of extortion and identity theft.

This was much harsher than most people expected, even considering the heinousness of Bollaert's actions. Some expected a lighter sentence coupled with an extended probation period, and Steinbaugh's tweets mention a previous plea deal that was rescinded or rejected. None of that matters now. As Steinbaugh points out, if Bollaert serves every year of his term, he'll be in jail longer than some of his site's victims were alive when their pictures were posted.

The sentence will most likely be appealed. Steinbaugh advances the theory that Section 230 protections could be used to undo the extortion and identity theft charges. (Although he is careful to preface his legal speculations with this warning: "It’s rather boring — and I’m probably wrong, but someone has to raise these issues, even in defense of a revenge porn site extortionist. Only Nixon could go to China, I suppose.")

If Bollaert does appeal, he has a good chance at success with respect to the identity theft charges (assuming Bollaert himself didn’t seek out the victims’ personal information). Simply publishing content submitted by users — even if the avowed purpose of the site was to promote invasion of privacy and tortuous conduct — is immunized by §230.

Whether or not the Section 230 argument will work against criminal extortion charges remains to be seen, but previous civil cases seem to present a few possibilities.

The courts which have addressed extortionate behavior in the civil context have indicated that §230 likely immunizes that conduct. §230 applies to website operators even when they exercise traditional editorial functions.

In Ascentive, LLC v. Opinion Corp., a federal district court in New York addressed consumer gripe site PissedConsumer.com’s “Corporate Advocacy Program”, a “premium reputation management service” under which PissedConsumer would remove negative reviews (if the consumer refused to allow PissedConsumer to act as an intermediary in resolving their complaint) and resolve new complaints before they are posted. The plaintiffs brought RICO claims against PissedConsumer, including predicate acts of “commercial bribery or extortion.” The district court, in denying the plaintiffs’ motion for a preliminary injunction, ruled that the plaintiffs had not demonstrated a likelihood of success on the extortion allegations.

As ugly as it seems, the protections afforded operators of sites hosting user-generated content could keep Bollaert from being incarcerated -- or at least take a huge chunk out of his 18-year sentence. But that's the dual edge of these sorts of protections. Much like the First Amendment protects ignorant, hate-filled racists and the Fourth Amendment protects child porn enthusiasts, Section 230 can protect revenge porn site owners from the content submitted to their sites.

Bollaert's sideline removal service complicates things, but despite profiting from both ends of the equation, the content was posted by others and his extortion-esque secondary business never asked for money to prevent the posting of submitted content, but rather the removal of already-posted photos and contact info. Pure, vile nastiness to be sure, but with enough legal loopholes to potentially jeopardize his conviction.

Additionally, Section 230 protections have previously only served to defend site owners in civil cases, rather than against criminal charges. It's highly unlikely this will be applicable to appealing the criminal charges, but these are state charges rather than federal charges, so this may provide him an opportunity to test California's statutory interpretation of Section 230.

If his conviction is overturned (Steinbaugh believes the state will do everything possible to prevent this) using Section 230 as leverage, we can expect more legislative attempts to gut these protections -- from lawmakers who are content ignore the harm it will cause site owners far more respectable than those trafficking in misery and exploitation simply because the targeted activity is so repulsive.

Filed Under: california, extortion, kevin bollaert, revenge porn, section 230, sentencing
Companies: yougotposted

Twitter Alters Its Rules To Tackle Revenge Porn

from the erring-on-the-site-of-caution dept

Twitter has entered the battle against revenge porn, joining dozens of lawmakers, the FTC and Reddit. Twitter's CEO admitted last month that his platform "sucks at dealing with abuse." This has resulted in a policy tweak that forbids the posting of intimate photos without authorization and enables those on the receiving end of revenge porn/doxing/etc. to contact Twitter to have the tweets removed.

Posting another person’s private and confidential information is a violation of the Twitter Rules.

Some examples of private and confidential information include:

• credit card information
• social security or other national identity numbers
• addresses or locations that are considered and treated as private
• non-public, personal phone numbers
• non-public, personal email addresses
• images or videos that are considered and treated as private under applicable laws
• intimate photos or videos that were taken or distributed without the subject's consent

Like any law/policy, there will be exceptions. Twitter's Rules go on to note that takedown requests will be considered on a case-by-case basis, rather than removing Tweets automatically when reported.

Keep in mind that although you may consider certain information to be private, not all postings of such information may be a violation of this policy. We may consider the context and nature of the information posted, local privacy laws, and other case-specific facts when determining if this policy has been violated. For example, if information was previously posted or displayed elsewhere on the Internet prior to being put on Twitter, it may not be a violation of this policy.

Kashmir Hill, writing for Fusion, gathered more specifics from a Twitter employee:

I asked Twitter if there was a “Weiner exception.” How would this apply to a newsworthy intimate photo, such as the bulge-portrait then-Congressman Anthony Weiner accidentally tweeted of himself which went viral and eventually led to his resignation from office? The Twitter employee said there will be a “newsworthiness exception.” So if your bulge or boobs are a front page story in the newspaper, Twitter may not take them down.

The policy also requires something that other sites (like Reddit) policing for revenge porn don't: the takedown request must be made by the person whose personal photos/information are being disseminated without authorization. This will hopefully deter some potential abuse.

One catch is that you have to recognize yourself in the photo and report it; Twitter doesn’t want “body police” going through tweets and reporting every pornographic image they find. If an offending tweet is removed, all native retweets will disappear too, but you’ll have to report all manual RTs and any further postings of the photo or video.

Mary Anne Franks, the law prof currently engaged in crafting questionable revenge porn laws, says Twitter isn't doing enough.

Franks, for one, thinks it’s problematic that bystanders can’t report the posting of explicit images of others. “Every minute private sexual material is available increases the number of people who can view it, download it, and forward it, so even if Twitter responds quickly to complaints, it may be too late to stop the material from going viral,” she said by email.

What Franks views as problematic is actually a practical safeguard. If you give removal power to everyone, it becomes a plaything for abusers.

Twitter will also try to determine whether the photos/info were actually posted without consent. However, at this point, the determination seems to largely rely on the takedown requester's assertions. The statement won't be legally binding or have any other repercussions other than possible suspension of the bogus requester's account. And there appears to be no process in place for the accused to challenge revenge porn accusations.

On the whole, it's not a terrible way to tackle revenge porn, even if it still leaves a lot to be desired. Certainly Twitter will be accused of censorship more frequently as this policy goes into effect, but as a private company, it can police user-generated content in any manner it sees fit. It's up to those using the service to decide whether they want to coexist with the rule tweaks.

Twitter notes that it's a work in progress. That, unfortunately, means the policy could possibly get much worse as Twitter "iterates" to fix "holes." As much as some people (like Franks above) would prefer Twitter to take a more proactive approach to removing revenge porn, the highly-subjective nature requires a reactive stance. Any policy change will be abused by both sides of this equation, and what's been implemented so far appears to be aimed at reducing collateral damage.

Filed Under: forums, free speech, moderation, platforms, revenge porn
Companies: twitter

Former Revenge Pornster Chance Trahan Reinvents Himself... As Shark Tank's Daymond John

from the highly-motivated-plagiarism dept

Chance Trahan and Craig Brittain, the "masterminds" behind revenge porn also-ran IsAnybodyDown, were never much for originality. To start out with, the site name was nothing more than a knockoff of revenge porn "pioneer" Hunter Moore's Is Anyone Up?

Like Hunter Moore, Trahan and Brittain made a living off the misery of others, hosting explicit photos assumed to be forever secret by those featured in them. All three resided in a particular subset of humanity, existing only to entertain and titillate another subset of humanity located roughly adjacent to these misery merchants.

And like Hunter Moore, these revenge pornsters ran headlong into the legal system. The FTC wrestled Brittain into an unfavorable settlement, while Trahan's supposed rebirth as an actual, presumably useful human being has gone unnoticed.

Or mostly unnoticed. Asher Langton noticed. Chance Trahan thinks he's enough of a draw that people will willingly pay him up to and including $70,000 to pretend to be someone else. Chance Trahan invites potential victims attendees to "look in the mirror" and "reflect success!" (Exclamation point in the "original.") But when Trahan looks in the mirror, he sees… Shark Tank's Daymond John.

Chance Trahan has copied -- in whole -- presentation FAQs and speaking topics [embedded below] from Daymond John's website, replacing little more than Daymond's name and logo with his own. [Original on top, Trahan's knockoff on the bottom.]



Yes, Chance Trahan is so inspirational he can't even bothered to compose his own AV instructions. He's the white Daymond John, only without the talent, drive or provable success. He's everything you could possibly expect from a former revenge porn site operator, including deeply hypocritical.

Much like Craig Brittain, Trahan has a deep -- if completely arbitrary -- respect for people's intellectual property. While the two may have built a small fiefdom using unauthorized photos, they're quick to deny that privilege to others. Brittain issued a DMCA notice a few weeks ago, aimed at delisting articles critical of him, including the FTC's own statement on his settlement. In his notice, he claimed the following, all without the slightest trace of irony:

Unauthorized use of photos of me and other related information. Unauthorized use of statements and identity related information. Unauthorized copying of excerpts from isanybodydown.com. Using photos which are not 'fair use'.

Trahan has made similar demands in the past. (h/t Adam Steinbaugh)

You are infringing Chance's intellectual property. Please consider this a notice of infringement and a demand that you cease and desist from using Chance and from using any and all intellectual property owned by Chance. Regarding the DMCA, all content of Chance that you use is copyrighted material for which you are using without permission of the copyright owner; namely, Chance. You are also using Chance's registered trademarks without permission.

Apparently, doing a name and logo swap isn't infringement. And neither is the use of others' intellectual property without permission -- like, say, in the context of a revenge porn site. Chance Trahan may be trying to reinvent himself as a brand-new, less-evil person, but so far, all he's done is reinvent himself as the Daymond John no one's interested in. The uninitiated may fall for this borrowed persona, but those familiar with Trahan's past will see right through his secondhand alter ego.

There's a lesson to be learned here. 98% of it is: don't be so fucking stupid. The other 2% is this: if you want to make amends for your previous wrongdoings, great. Just don't do it by trying to bury your past (Brittain) or by building a whole "new" persona nearly-completely based on someone else's work and success.

If this pair genuinely wants to go forth and do no (further) evil, that would be great. But so far, both have proven they can't even get out the front door without botching it completely. Fortunately, this time, the damage they're causing is mostly internal.

Filed Under: chance trahan, craig brittain, daymond john, motivational speaker, plagiarism, reflect success, revenge porn