Legal Developments in Revenge Porn: An Interview with Mary Anne Franks
A handful of state legislatures have recently passed or considered some different proposed bills to address the harm of non-consensual pornography (often called ‘revenge porn’). The topic of revenge porn raises important questions about privacy, civil rights, and online speech and harassment.
Law professor Mary Anne Franks has written previously on the topic in multiple venues, including in guest posts at Concurring Opinions. We were pleased to catch up with her recently to discuss the latest developments. Our interview follows:
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Hi, Mary Anne! Thanks so much for joining us for an interview. This is a really interesting topic, and we’re glad to get your take on it.
I am delighted to be here! Thank you for having me.
Okay, some substantive questions. First, what is ‘revenge porn’?
“Revenge porn” is a subset of a larger category of conduct I call, for lack of a better term, “non-consensual pornography.” It’s the popular term for a situation in which a couple shares sexually explicit images as part of a private, consensual relationship, and one of them later uses those images to harm the other by uploading them to porn websites like TubeV, sending them to the victim’s family members, and/or distributing them to the victim’s employer, colleagues, and peers. The larger category of non-consensual pornography includes sexually explicit images taken without the subject’s knowledge (whether by use of hidden cameras, hacking, or theft) as well as images taken of sexual assaults (e.g. Steubenville, Audrie Pott).
What kind of harm does non-consensual pornography cause?
This conduct transforms individuals’ most intimate moments into pornographic spectacles exposed to the general public. A vengeful ex-partner or malicious hacker can upload an explicit image of a victim to a website where thousands of people can view it and hundreds of other websites can share it. In a matter of days, that image can dominate the first several pages of “hits” on the victim’s name in a search engine, as well as being emailed or otherwise exhibited to the victim’s family, employers, co-workers, and peers. Non-consensual pornography can destroy victims’ intimate relationships as well as their educational and employment opportunities. Victims are routinely threatened with sexual assault, stalked, harassed, fired from jobs, and forced to change schools. Some victims have committed suicide.
That’s terrible! But, do we need new laws here? Isn’t this kind of thing covered under existing laws?
Victims can in theory bring civil actions, but civil suits are costly, time-consuming, and extremely burdensome to victims. In addition, websites that distribute non-consensual pornography are given broad immunity for civil liability under federal law (Communications Decency Act §230), with the exception of copyright claims. Copyright claims, however, can only be made by the person who created the image.
More importantly, this kind of conduct is an act of sexual use without consent, that is, a form of sexual abuse. Criminal penalties are both the most appropriate response and the most effective deterrent to this conduct. Right now, only two states, New Jersey and California, currently treat non-consensual pornography as a crime in itself, and no federal law does so. Some other states have strong anti-voyeurism laws, but even these only protect victims whose images were taken without their knowledge or consent, not victims who consented to give their pictures to one intimate partner for private use. Federal and state laws prohibiting harassment and stalking only apply if the victim can show that the non-consensual pornography is part of a larger pattern of conduct intended to distress or harm the victim, which leaves out the whole category of victims whose images are distributed by people motivated by a desire for money or notoriety.
What do the new bills do? Is there any difference between Cali, New York, or other proposed bills?
California’s new law is very limited. It protects only victims whose image were taken by another party and only reaches perpetrators who act with the intent to cause serious emotional distress. It also does not provide clear exceptions, which make it vulnerable to First Amendment attack. It also carries very light penalties, in contrast to New Jersey, the only other state with a law in place, where the conduct is punishable by 3-5 years in prison and/or a $30,000 fine. There are several different bills being floated in New York, most of which have very good intentions but are not particularly well thought-out. The bill I worked on personally, sponsored by Assemblyman Edward C. Braunstein and Senator Joseph Griffo, is based on my model statute and avoids the mistakes of the California bill. It makes no distinction between self-shots and images taken by others, has no “intent to cause distress” requirement, and includes careful “reasonable expectation of privacy” language along with important exceptions for constitutionally protected expression. Professor Danielle Citron and I have been working with Maryland legislators on their proposed bill, which is substantially similar to the Braunstein/Griffo New York bill. The Maryland bill also includes a “newsworthiness” exception.
Should this kind of thing be handled at the state level, or it the sort of problem really better addressed under federal law?
Both are necessary, though a federal criminal law would have the most impact. State criminal laws are necessary to address conduct that does not cross state lines. Federal law is necessary because state laws are limited both by jurisdiction and by the Communications Decency Act §230, which creates high hurdles for either civil or criminal charges against website operators who distribute non-consensual pornography. Given that the Internet has greatly amplified the scope and harm of non-consensual pornography, an effective law must also reach Internet traffickers. Congress’s power to regulate interstate commerce (here, Internet activity) and the fact that CDA §230 does not shield websites from federal criminal liability means that a federal criminal prohibition is both appropriate and necessary to fully address the problem of non-consensual pornography. I have drafted a model federal statute in addition to a model state statute, and we are in touch with the offices of several members of Congress interested in sponsoring the legislation.
But what about the First Amendment? Can’t people put whatever they want onto the internet?
The First Amendment doesn’t protect threats, obscenity, child pornography, and a very long list of other things, on the Internet or elsewhere. There are people who stamp their feet and insist that non-consensual pornography is free speech, but saying it doesn’t make it so. It is of course true that any law regulating expression must be carefully worded to avoid infringing upon the First Amendment, and I am very aware of that in my work on these laws (and I have actively sought, and continue to welcome, feedback on the subject). Carefully drafted laws against non-consensual pornography do not violate the First Amendment any more than laws against identity theft, extortion, or doctor-patient confidentiality do.
Okay, so would the proposed bills limit legitimate speech, such as consensual nude photography, group pictures at nudist camps, those “five thousand naked people in a public space” art projects, or the like? Just trying to sort out how this all works.
Nope, at least not any of the bills that I would support. The bills target a very narrow band of “expression,” namely, sexually explicit images that are disclosed without consent and without any lawful purpose. No one who engages in consensual sexual conduct has anything to fear from this bill.
Hm. So if these bills really only go after terrible people who do terrible things, and don’t infringe upon consensual sexual expression, why are some people so hostile to the idea?
I think resistance to these laws can arise from a variety of factors. Some people – including some lawyers, much to my surprise – are just uneducated about the First Amendment and really seem to think that it protects all forms of expression. Some people are confused about the scope of these laws, and think they apply to things like taking pictures of people in tank tops on the street (they don’t) or would have kept them from learning about Anthony Weiner’s sexcapades (they wouldn’t). Let’s put these in the “genuinely confused” category.
But then there’s a whole category of people who aren’t confused at all – let’s call this the “threatened sexist” category. To explain this, we have to back up a bit and take note of the fact that non-consensual pornography, like rape, domestic violence, and sexual harassment, is overwhelmingly (though of course not exclusively) targeted at women and girls. So you get some people who might cynically invoke the First Amendment or raise disingenuous questions about scope, but who are really just hostile to anything that makes it harder to treat women as second-class citizens, especially when it comes to sex. These are people who fully understand that a great number of our personal, social, and legal interactions are premised on the idea of contextual consent. They would never argue that a customer who gives his credit card to a waiter has given the waiter the right to use that credit card to buy himself a motorcycle. They would never argue that the fact that a person voluntarily gave personal information to a cellphone gives that provider the right to hand that information over to, say, the NSA. And yet they argue that a woman who gives her boyfriend a sexually explicit picture has given him the right to use that picture any way he wants, including uploading it to porn sites and distributing it to her family and friends. The inconsistency of this logic would be amusing if it didn’t reveal such alarming hostility to women’s basic rights over their own bodies. Presumably these people also believe that if a woman has sex with one man, she has given that man the right to invite all of his friends into the bedroom to have sex with her too.
That’s disturbing. Do you think this is a widely-held view?
It’s hard to say, because so often these people don’t have the nerve to put their names or faces behind their misogynist rants. It could all just be coming from one guy in his basement who never sleeps. Seriously, though, I have been a bit surprised by just how transparent some of these objectors are about the fact that they are motivated by nothing more than sexism. One New York lawyer/blogger was so freaked out by the law I wrote that he wrote an entire post about it that didn’t contain a single argument against it – only the incredibly juvenile and tasteless insinuation that I must be working on this issue because I was a victim of this conduct myself.
I’m disgusted and horrified by the phenomenon of revenge porn. But what about people who live in jurisdictions without specific laws here? What can they do to encourage the passage of laws in their states to limit this kind of harmful behavior?
Please visit Holly Jacobs’ website, End Revenge Porn, where you can find information about how to help push for legislation in your state as well as resources and support for victims. Holly, an incredibly brave and inspiring victim of revenge porn, is also the founder of the Cyber Civil Rights Initiative, whose Board of Directors includes Danielle Citron and me. CCRI is a non-profit organization that combats cyber harassment by raising awareness and encouraging advocacy.
What are some other next steps in the overall project of countering the bigotry that drives women out of online spaces? What are some good resources — news articles, law review articles — if I’d like to find out more about this?
The first thing everyone can do about online bigotry is refuse to tolerate it. Challenge the violence and intimidation routinely directed at disfavored groups. The Internet should not be held hostage to the interests of sexists, homophobes, and racists hellbent on attacking and destroying anything they find threatening.
Some good resources: The Everyday Sexism Project and Women, Action, and the Media’s site. Check out Soraya Chemaly’s work for terrific insights and initiatives. She’s written too many great things to list here, but here are some must-reads: her CNN article on free speech and violence against women and her Huffington Post piece about the “digital safety gap.”
[Ed. — Mary Anne is politely not tooting her own horn, so I’ll do it for her — her recent articles Sexual Harassment 2.0 and Unwilling Avatars are also must-reads here, along with my co-blogger Danielle Citron‘s articles Cyber Civil Rights and Law’s Expressive Value in Combating Cyber Gender Harassment.]
Thanks again for joining us, it’s great to have you on the blog. And thanks for your tireless advocacy on behalf of people harmed by non-consensual pornography and other forms of cyber harassment.
Interested readers can follow these links to learn more about Mary Anne and her scholarship.