From the New York Times editorial board, an endorsement of the work of the Cyber Civil Rights Initiative (led by Holly Jacobs and on which Mary Anne Franks and I are Board members) in calling for the criminalization of non-consensual publication of sexually explicit images:
Revenge porn is one of those things that sounds as if it must be illegal but actually isn’t. It’s the term of art for publishing sexual photos of someone without his or her — usually her — permission, often after a breakup.
Consider Holly Jacobs, founder of the Cyber Civil Rights Initiative, who exchanged intimate pictures with a boyfriend while in graduate school. When the relationship ended he started posting them online. She sought help from law enforcement, but the police said she didn’t have a case because she was over 18 when the pictures were taken, and they were her ex-boyfriend’s property.
So far only two states have restricted this humiliating, reputation-killing practice. In 2004, New Jersey adopted an invasion-of-privacy law aimed at voyeurs, which also prohibits the dissemination of sexual recordings or pictures without consent. This month, California Gov. Jerry Brown signed a bill making revenge porn a misdemeanor punishable with up to six months in jail and a $1,000 fine. But it contains a large loophole: it applies only if the individual who distributed the pictures was also the photographer.
California’s law does not cover situations where someone took a self-portrait and shared it with a partner, who then uploaded it to the Internet. The Cyber Civil Rights Initiative has estimated that 80 percent of revenge-porn images were recorded by the victim.
California’s law, though inadequate, has at least brought attention to the problem, and other states are considering action. New York Assemblyman Edward Braunstein, a Democrat, and State Senator Joseph Griffo, a Republican, recently announced revenge porn legislation that would make non-consensual disclosure of sexually explicit images a Class A misdemeanor. It would include pictures taken by victims.
Neither current nor proposed state laws are likely to have an effect on the Web sites that make the explicit images available to the prurient public, because they can claim protection under the Communications Decency Act. Section 230 of that statute has been interpreted by courts to shield sites that host third-party content from liability, unless that content, like child pornography, violates federal law. (Or unless sites cross the line from aggregators to co-creators of the material in question.)
It is not clear how many people have been affected by revenge porn — activists rely on self-reporting — but Ms. Jacobs has said that over 1,000 victims have reached out to her since she started speaking out on this issue. And a tour through a site like Private Voyeur reveals a depressingly large cache of photographs.
Going through a breakup is bad enough; going through a breakup and finding out that your ex is a horrible person is worse. Although lawmakers can’t do much to help their constituents with these difficulties, they can work to provide recourse for when exes seek revenge through un-consensual pornography.