My recent post offered a potential amendment to Section 230 of the CDA that would exempt from the safe harbor operators whose sites are primarily designed to host illegal activity. Even without such legal change, cyber cesspool operators could face criminal liability if prosecutors took matters seriously. Section 230 does not provide a safe harbor to federal criminal charges. Consider revenge porn operator Hunter Moore’s statement to the press (Forbes’s Kashmir Hill and Betabeat’s Jessica Roy) that, on his new site, he will overlay maps of individuals’ homes next to their naked pictures and social media accounts (if he does not like them). If Moore is serious, he might open himself up to criminal charges of aiding and abetting cyber stalking. Congress, in its 2006 reauthorization of the Violence Against Women Act (VAWA), banned the use of any “interactive computer service” to engage in a “course of conduct” that places a person in another state in reasonable fear of serious bodily injury or death or that is intended to cause, and causes, a victim to suffer substantial emotional distress. 18 U.S.C.A. 2261A(2) (2012). As the Executive Director of the National Center for Victims of Crime explained in congressional testimony:
[S]talkers are using very sophisticated technology . . . —installing spyware on your computer so they can track all of your interactions on the Internet, your purchases, your e-mails and so forth, and using that against you, forwarding e-mails to people at your job, broadcasting your whereabouts, your purchases, your reading habits and so on, or installing GPS in your car so that you will show up at the grocery store, at your local church, wherever and there is the stalker and you can’t imagine how the stalker knew that you were going to be there. . . . this legislation amends the statute so that prosecutors have more effective tools, I think, to address technology through VAWA.
Congress ought to consider passing laws that criminalize the operation of sites designed to facilitate the posting of nude photographs without subjects’ consent, along the lines of state invasion of privacy laws. States like New Jersey prohibit the posting of someone’s nude or partially nude images without his or her consent if the images were recorded in a place where a reasonable person would enjoy an expectation of privacy. The Senate Judiciary Committee recently approved a bill that makes it a crime to make an online app whose primary use is to facilitate cyber stalking. The next important step is to criminalize sites doing the same.
Of course, laws will have limited coercive and expressive impact if they are never enforced. As the group End Revenge Porn rightly notes, “State police argue that the crime is occurring on the internet, which therefore crosses state lines and is out of their jurisdiction. The FBI claim that these cases are civil and/or do not threaten national security and should therefore should be handled solely by lawyers.” Changing those social attitudes and legal solutions are key. Advocacy groups like Without My Consent , lawyers, law professors like Mary Anne Franks, see here, Ann Bartow, see here, and Derek Bambauer, see here, activists like Jill Filipovic and Charlotte Laws, and most recently victims behind Women Against Revenge Porn and End Revenge Porn are working hard on this score. One might say that their work is part of an emerging cyber civil rights movement. (Check out Professor Franks’s important commentary about revenge porn on HuffPo Live). Lucky for us at CoOp, Professor Franks will be joining us next month as a guest blogger. I will be working hard to finish my book Hate 3.0: The Rise of Discriminatory Online Harassment and How to Stop It (forthcoming Harvard University Press) and working with Professor Franks on non-consensual pornography, so more to come.