Anti-‘revenge porn’ group focusing on state bans, for now

October 30, 2013

(Damian Dovarganes/AP)

It’s a nightmare scenario. A jilted ex uploads your compromising photos or videos — maybe ones even taken with consent during happier times — to a Web site for anyone to see. Cue months or even years of anguish, legal proceedings and embarrassment.

Victims can pursue remedies under existing laws governing threats, stalking and harassment. But even without the complications of the Internet, those can be hard to enforce, say advocates of imposing harsher penalties for the practice. So they’re working to get states to pass new laws against so-called “revenge porn,” with an eye toward a grand prize: federal legislation.

“We are really hoping that Congress moves on this sooner, because then you’re going to protect the majority of victims all at once,” says Mary Anne Franks, a University of Miami School of Law professor.

Franks sits on the board of directors of the nonprofit Cyber Civil Rights Initiative, which is pushing legislation that would impose jail time and fines on those who share such material. Sen. Barbara Boxer and other federal lawmakers have told CCRI they’re interested in exploring a federal law, Franks says. But until Congress acts — and who knows when Congress will act — the group is focusing on states. Only two have laws against revenge porn so far: New Jersey, which passed its version in 2004, and California, which passed its earlier this month. But a handful are currently working with CCRI.

One of the group’s bills will be unveiled later today by Maryland state Del. Jon S. Cardin (D-Baltimore County), who is also running to be the state’s attorney general. He’ll be joined by another CCRI board member, University of Maryland law professor Danielle Citron. And CCRI is also working with lawmakers in Florida, Maryland and Wisconsin. Politicians in three more states — Delaware, Kansas and Alabama — have reached out to the group, too. And press reports suggest that there’s also interest in Washington, Pennsylvania and Connecticut, Franks says.

But there are anti-revenge porn efforts even without CCRI’s involvement. In Maryland, another candidate in the attorney general race is also working on such legislation. At least three bills before the New York state legislature would criminalize the practice, with CCRI involved with only one — that sponsored by state Assemblyman Edward Braunstein.

Statistics about the prevalence of revenge porn are hard to come by, though the material that comprises it abounds. One in four adults aged 18 to 24 have received sexts — suggestive photos or videos — according to a 2012 Pew survey. And nearly one in three adults aged 25 to 34 have received sexts. Among all adults, 15 percent say they have received nude or nearly nude photos or videos of individuals they know.

And an industry has sprouted around such material, Franks says.

“It was mostly bitter ex-boyfriends or husbands doing this on a one-to-one basis, now non-consensual pornography, revenge porn, whatever you call it is becoming kind of a niche category,” Franks says. “What that means is that there’s money involved.” Hunter Moore, the founder of a Web site that profited from revenge porn, is said to have earned up to $13,000 a month in advertising, according to reports.

There are pitfalls and concerns to anti-revenge porn laws, though.

“It is conceivable, however limited this category might be, that you could have information that … might be subject to one of these laws that is of public importance that might relate to the conduct of a public official,” says Jeff Hermes,  director of the Digital Media Law Project at Harvard’s Berkman Center for Internet and Society. Imagine a politician engaging in acts he or she publicly denounces, Hermes said. Would that be protected from being shared? Should it, if it serves the public interest?

Hermes and other critics of the law recognize the practice for what it is: a blatant violation of trust and privacy. But there’s also a concern that the laws are dangerously close to — or in some cases are — infringing on First Amendment rights, critics say.

“It’s easy to see the broad unintended consequences of a law like that whether it’s news reporting or consensual speech or other similar ventures,” says Adi Kamdar, an activist with the Electronic Frontier Foundation, a digital rights organization.

The laws may generally target bad actors but they can still be better written, Hermes says. They would be best when focused on the nature of the information being shared — whether it serves the public interest, for example — rather than the intent of the sharer, as California’s law is, he says.

On that point, he won’t get a very strong argument from Franks. California’s law fails in two significant ways, she says. First, it requires proof that the individual publishing the photos or videos had intent to cause emotional distress, a requirement that’s not only difficult to prove but also forces victims to undergo yet another invasion of privacy. How would they prove distress? Counseling records? Recounting comments or embarrassing situations stemming from the published material? Second, California’s law only applies if someone else took the photo, even though about 80 percent of victims say they took compromising photos themselves, according to CCRI surveys.

And CCRI is eager to take into account concerns from its critics, Franks says. She has reached out to the ACLU, for example, to ensure that the model laws the group provides protect civil liberties while also punishing revenge porn publishers.

Niraj Chokshi reports for GovBeat, The Post's state and local policy blog.
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