Revenge Porn: Is a Federal Criminal Ban Imminent

According the National Conference of State Legislatures, “revenge porn” is defined as “the posting of nude or sexually explicit photographs or videos of people online without their consent, even if the photograph itself was taken with consent. A spurned spouse, girlfriend or boyfriend may get revenge by uploading photographs to websites, many of which are set up specifically for these kinds of photos or videos. The victim’s name, address and links to social media profiles are often included with the images, and some websites charge a fee to have the materials removed.”

In case you haven’t noticed, numerous states across the U.S., the U.S. federal government and various provinces in Canada have been quite busy in 2013 and 2014 in their attempt to fight back against the revenge porn epidemic. Revenge porn has been labeled by lawmakers as a form of “cyberbullying” that is a wildfire raging out of control. Numerous jurisdictions have already passed or are in the process of passing laws that make revenge porn a serious crime.

For example, Ariz. Gov. Jan Brewer, recently signed a law that makes it a felony to post intimate images of others online without their consent. Under Arizona law, perpetrators of revenge porn would face a presumptive sentence of 18 months in prison for the crime, which could be increased to 2½ years if the person shown in the image can be recognized. Under Arizona’s law, it is a crime to “intentionally disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording of another person… if the person knows or should have known that the depicted person has not consented to the disclosure.”

In California, Gov. Jerry Brown signed SB 255 into law, making revenge porn a misdemeanor under California’s disorderly conduct statute. The potential sentence is 6 months in jail and a $1,000 fine with increased fines for repeat offenders. Pursuant to SB 255, the state of California must show that the defendant (1) took pictures or videos of another person’s intimate body parts, with the mutual understanding that such images will be kept confidential; (2) distributes such images, where the victim is identifiable; (3) has the intent to cause serious emotional distress to the victim; and (4) the victim actually suffers such distress.

In Utah, HB 71 outlaws revenge porn, defined as “the distribution of intimate, that is, sexually explicit, images, pictures or videos of another person without his or her permission, even if the photograph itself was taken with consent.” Violation of HB 71 is a misdemeanor and a convicted defendant faces up to 1 year in jail and a $2,500 fine. Repeat offenders can be charged with a felony.

Similar laws have also been passed in Georgia, Idaho, New Jersey, Utah, Virginia, and Wisconsin. Many other states have pending revenge porn legislation, including Michigan. Michigan Senate bills Nos. 924 and No. 925 would make it either a misdemeanor or a felony (depending on whether it’s the individual’s first or subsequent offense) to:

(1)(A) Post on the Internet any sexually explicit photograph, drawing, or other visual image of another person with the intent to frighten, intimidate, or harass any person.

(1)(B) Having posted on the Internet any sexually explicit photograph, drawing, or other visual image of another person, regardless of whether the posting was with the intent to frighten, intimidate, or harass any person, refuse or otherwise fail to remove that explicit photograph, drawing, or other visual image from the Internet upon the written request of that other person. This subsection applies regardless of whether the other person consented to the posting of that photograph, drawing, or other visual image unless that other person knew or had reason to know the photograph, drawing, or other visual image was sexually explicit and signed a release knowingly allowing that photograph, drawing, or other visual image to be posted on the Internet by that person.

The state of Michigan does propose the following affirmative defense:

(2) It is an affirmative defense in a prosecution for a violation of subsection (1) that the person took all reasonable steps to have the photograph, drawing, or other visual image removed from the Internet immediately upon the written request of that other person under subsection (1)(B).

The state of Michigan also attempts to define “sexually explicit”:

(3) As used in this section, “sexually explicit” means displaying a person’s genitalia or anus or, if the person is a female, her nipples or areola.

At the federal level, according to numerous sources including U.S. News & World Report, Congresswoman, Jackie Sperier (D-Calif.) with the assistance of University of Miami professor Mary Anne Franks (board member of the Cyber Civil Rights initiative) have been hard at work in drafting a bill that would criminalize websites from publishing revenge porn. According to Mike Masnick and TechDirt.com, Franks allegedly stated that, “The impact [of a federal law] for victims would be immediate. If it became a federal criminal law that you can’t engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability violations.”

U.S. News quoted Franks as stating “websites wouldn’t be able to raise the special Section 230 defense that intermediaries are sometimes able to raise with regard to unlawful activity.”

Many organizations and lawyers are concerned that making revenge porn a federal crime may require third party providers to remove or block access to the alleged inappropriate content. Additionally, there is concern that the federal law may attempt to circumvent Section 230 of the Communications Decency Act.

47 U.S.C. § 230, states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230 has been used to protect online intermediaries that host or republish speech against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. Not only have ISPs historically used Section 230 as a shield, but so have websites that publish third party content. It has been argued that if it weren’t for Section 230, sites such Facebook, Twitter, YouTube, Craigslist and Vimeo would not exist.

Recently, a Texas appeals court, in an excellent ruling, decided that GoDaddy was safe from liability related to the revenge porn website Texxxan.com.

In that case, Judge Charles Kreger opinioned that “allowing plaintiffs’ to assert any cause of action against GoDaddy for publishing content created by a third party, or for refusing to remove content created by a third party would be squarely inconsistent with section 230” of the federal Communications Decency Act. Kreger also wrote that “because GoDaddy acted only as an interactive computer service provider and was not an information content provider with regard to the material published on the websites, plaintiffs cannot maintain claims against GoDaddy that treat it as a publisher of that material.” Kreger added that the Communications Decency Act (CDA) grants immunity even in cases involving illegal and obscene material and that limiting its application to suits involving constitutionally protected material would “undermine its purpose.”

While Section 230 would protect against state claims, Section 230 does not apply to federal criminal liability and it appears that congresswoman Sperier with the assistance of Franks intend on taking advantage of this exception.

Revenge porn website operators need to also consider the potential civil liabilities associated with this high-risk business model and individual owners need to realize that corporate “civil shields” may not be available when it comes to revenge porn.

In March, the founders of the website UGotPosted.com (Eric Chanson, and Kevin Bollaert) were ordered to pay $385,000 to an Ohio woman by an Ohio federal court, as a result of their activities. Additionally, Bollaert was charged with more than 30 felony counts, including, conspiracy, identity theft, and extortion in California.

Until Sperier’s proposed bill is made available to the public the only thing that anyone can do is speculate, however, a federal criminal law relating to revenge porn and/or revenge porn websites needs to be on the minds of everyone including those that have enjoyed Section 230 immunity in the past.

Theoretically and speculatively, a federal ban on the publishing of revenge porn could impact everyone from ISPs to search engines to webmasters.

Now is the time for those who operate revenge porn websites or act as a vendor to revenge porn websites to reconsider their business practices. Despite the potential defenses and arguments against a federal criminal law criminalizing revenge porn and/or revenge porn websites (including potential First Amendment challenges), it is clear that new aggressive federal criminal legislation against revenge porn and/or revenge porn websites (and without Section 230 protection) is on the way.