Erica Johnstone is a co-founder of the privacy nonprofit, Without My Consent, and a partner with Ridder, Costa & Johnstone LLP.
Imagine there are naked photos of you online that appear on the first page of search results when someone searches for your name. The images are linked to your true name, place of business, and home address. Worse still, every hate-filled troll has piled on to harass and stalk you. The comments leave you terrified for your and your family’s personal safety. Is the perpetrator’s conduct legal? Generally speaking, no. “Involuntary porn”, also called “revenge porn,” is the creation, publication, or dissemination of a person’s private intimate image without that person’s consent and for no legitimate public concern. It is legally actionable in almost every situation. Is there a path to justice? It’s complicated.
Your first question might be: how do the images get online? The most common scenarios are nightmare exes, hackers, and peeping Toms.
And then you might wonder, how many people are actually victims of involuntary porn? We need better data and more of it data to provide a satisfactory answer. Concrete examples like those cited above are sometimes criticized for being “one-off” events. But the truth is that everyone who engages in online activities knows the harassment, stalking, and trolling happen with alarming frequency, and abuse often involves the publication or threat of publication of private intimate images.
According to a recent McAfee study, “Love, Relationships, and Technology: When Private Data Gets Stuck in the Middle of a Breakup,” 10% of ex-partners have threatened to expose risqué photos of their exes online, and those threats were carried out almost 60 percent of the time. 36% of Americans plan to send sexy or romantic photos to their partners via email, text and social media on Valentine’s Day. But those people are not the only victims of involuntary porn. Hackers and peeping Toms have a way of finding photos and posting online as well. For instance on January 29, 2013, the FBI arrested one man whom investigators estimate is responsible for terrorizing more than 350 women.
What is being done about the problem?
- There is a lawsuit pending against the revenge porn site Texxxan.com seeking actual and punitive damages and injunctive relief for invasion of privacy, negligence, wrongful appropriation of names of likenesses, intentional infliction of emotional distress and civil conspiracy, on the basis that section 230 of the Communications Decency Act does not immunize websites that are themselves responsible, in whole or in part, for the creation or development of unlawful content.
- There is anticipated copyright litigation against the revenge porn site IsAnybodyDown.com, on the basis that even if the website is immunized against some claims by Section 230, the website may be vulnerable to intellectual property–related claims such as those arising under copyright law.
- University of Miami Law Professor Mary Anne Franks is working on a proposed law to criminalize the misconduct at the federal level (which would not be immunized by section 230). She outlines her proposal here.
- Without My Consent (a non-profit I co-founded) is working to publish and keep updated an informational website, WithoutMyConsent.org, that includes legal and practical information for victims of involuntary porn and the attorneys who advocate on their behalf. WMC is currently undertaking a 50-State survey to compile a comprehensive overview of the possible civil claims that a victim of such conduct might explore, and the potential criminal consequences of the unlawful conduct, in each jurisdiction.
Here are some simple concrete steps everyone can take to stop involuntary porn.
- Speak out about the fact that privacy is worth protecting.
- Enact a criminal invasion of privacy statute in every state that doesn’t already have one. New Jersey has a noteworthy Invasion of Privacy statute, N.J.S.A. 2C:14-9y int, which prohibits both recording and disclosing a private image of another person without consent. If your state does not already have a criminal invasion of privacy law on the books, you may petition your state lawmakers to pass a law modeled after N.J.S.A. 2C:14-9 in your state.
- If the prosecution of technology-related crimes is an issue that matters to you, contact your state’s Attorney General and let him/her know that the residents of your state believe privacy matters. Begin a dialogue in your state. There is already a model in place, developed by the state of California. In 2011, the California DOJ created an eCrime Unit that: (1) trains police and prosecutors in light of new technologies; and (2) prosecutes criminal online invasions of privacy, among other crimes.
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