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CRIMINALIZING REVENGE PORN
Danielle Keats Citron
Mary Anne Franks
I
NTRODUCTION
“Jane” allowed her ex-boyfriend to photograph her naked
because, as he assured her, it would be for his eyes only. After their
breakup, he betrayed her trust. On a popular “revenge porn” site,
he uploaded her naked photo along with her contact information.
Jane received e-mails, calls, and Facebook friend requests from
strangers, many of whom wanted sex.
According to the officers, nothing could be done because her ex
had not violated her state’s criminal harassment law. One post was
an isolated event, not a harassing course of conduct as required by
the law. Also, her ex had not threatened her or solicited others to
stalk her. If Jane’s ex had secretly photographed her, he might have
faced prosecution for publishing the illegally obtained image. In her
state, however, it was legal to publish Jane’s naked photo taken
with her consent even though her consent was premised on the
promise the photo would remain private.
1
Lois K. Macht Research Professor & Professor of Law, University of
Maryland Francis King Carey School of Law; Affiliate Scholar, Stanford Center
on Internet and Society; Affiliate Fellow, Yale Information Society Project.
Associate Professor of Law, University of Miami School of Law. We are
grateful to Derek Bambauer, Paul Cassell, Caroline Corbin, Michele Godwin,
Jeff Hermes, Toni Holness, John Humbach, Bill McGeveran, Helen Norton, Neil
Richards, David Rocah, Lee Rowland, Greg Schaeffer, Geoffrey Stone, and
Eugene Volokh for their insightful feedback on this project as well as the
comments of the participants of the Wake Forest Law Review symposium, the
University of Minnesota Faculty Workshop, and the Free Expression Network
meeting. Our colleagues at the Cyber Civil Rights Initiative and Without My
Consent, Holly Jacobs, Charlotte Laws, Colette Vogele, and Erica Johnstone,
have been indispensable to us in thinking through these issues. Frank
Lancaster, as always, was a wonderful assistant and researcher. Much thanks
to Linda Boss, Doug Winn, and the superb editorial staff of the Wake Forest
Law Review.
1. One of us (Citron) spoke to “Jane” just after the post appeared online.
Telephone Interview with “Jane” (May 7, 2013) (notes on file with Danielle
Citron); Danielle Keats Citron, ‘Revenge Porn’ Should Be a Crime, CNN (Jan.
16, 2014, 3:49 PM), http://www.cnn.com/2013/08/29/opinion/citron-revenge-porn/
(discussing Jane’s experience).
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Nonconsensual pornography
2
involves the distribution of
sexually graphic images of individuals without their consent. This
includes images originally obtained without consent (e.g., hidden
recordings or recordings of sexual assaults) as well as images
originally obtained with consent, usually within the context of a
private or confidential relationship (e.g., images consensually given
to an intimate partner who later distributes them without consent,
popularly referred to as “revenge porn”). Because the term “revenge
porn” is used so frequently as shorthand for all forms of
nonconsensual pornography, we will use it interchangeably with
nonconsensual porn.
Publishing Jane’s nude photo without her consent was an
egregious privacy violation that deserves criminal punishment.
Criminalizing privacy invasions is not new. In their groundbreaking
article The Right to Privacy published in 1890, Samuel Warren and
Louis Brandeis argued that “[i]t would doubtless be desirable that
the privacy of the individual should receive the added protection of
the criminal law.”
3
Over the past hundred years, state and federal legislators have
taken Warren and Brandeis’s advice and criminalized many privacy
invasions. These include laws against identity theft. The federal
Video Voyeurism Prevention Act of 2004 bans intentionally
recording or broadcasting an image of another person in a state of
undress without that person’s consent and under circumstances in
which the person enjoys a reasonable expectation of privacy.
4
State
video voyeurism laws criminalize the intentional recording of a
person’s intimate parts without permission.
5
Why, then, are there so few laws banning nonconsensual
pornography? A combination of factors is at work: lack of
understanding about the gravity, scope, and dynamics of the
problem; historical indifference and hostility to women’s autonomy;
inconsistent conceptions of contextual privacy; and
misunderstandings of First Amendment doctrine.
Revenge porn victims have only recently come forward to
describe the grave harms they have suffered, including stalking, loss
2. Nonconsensual pornography is also sometimes referred to as “revenge
porn,” “cyber rape,” or “involuntary porn.”
3. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 H
ARV.
L. REV. 193, 219 (1890). Warren and Brandeis noted that possible criminal
legislation could punish as a felony the publication of “any statement
concerning the private life or affairs of another, after being requested in
writing . . . not to publish such statement” provided the statement does not
concern someone’s qualifications for public office or profession or involve a
matter of public interest. Id. at 219 n.8.
4. 18 U.S.C. § 1801. This statute’s definition of “capture” includes
“broadcasting,” which suggests that it could be used to apply to the
nonconsensual disclosure of such images. However, the statute’s jurisdiction is
very limited, confined to the “the special maritime and territorial jurisdiction of
the United States.” Id.
5. See, e.g., D
ANIEL J. SOLOVE & PAUL M. SCHWARTZ, PRIVACY LAW
FUNDAMENTALS (2d ed. 2013).
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of professional and educational opportunities, and psychological
damage. As with domestic violence and sexual assault, victims of
revenge porn suffer negative consequences for speaking out,
including the risk of increased harm. We are only now beginning to
get a sense of how large the problem of revenge porn is now that
brave, outspoken victims have opened a space for others to tell their
stories. The fact that nonconsensual porn so often involves the
Internet and social media, the public, law enforcement, and the
judiciary sometimes struggle to understand the mechanics of the
conduct and the devastation it can cause.
Our society has a poor track record in addressing harms that
take women and girls as their primary targets. It has been an
uphill battle to get domestic violence, sexual assault, and sexual
harassment recognized as serious issues, and the tendency to
trivialize and dismiss these harms persists. As revenge porn affects
women and girls far more frequently than men and boys, and
creates far more serious consequences for them, it is yet another
harm that our society is eager to minimize.
This disregard for harms undermining women’s autonomy is
closely tied to idiosyncratic, dangerous views about consent with
regard to sex. A victim’s consensual sharing of sexually explicit
photos with a trusted confidant is often regarded as wide-ranging
permission to share them with the public. Said another way, a
victim’s consent in one context is taken as consent for other
contexts. That is the same kind of dangerous mentality at work in
sexual assault and sexual harassment. For years, women have had
to struggle with legal and social disregard of their sexual
boundaries. While most people today would rightly recoil at the
suggestion that a woman’s consent to sleep with one man can be
taken as consent to sleep with all of his friends, this is the very logic
of revenge porn apologists.
Outside of sexual practices, most people recognize that consent
is context-specific. Privacy regulation and best practices make clear
that permitting an entity to use information in one context does not
confer consent to use it in another context without the subject’s
permission.
6
Individual and societal expectations of privacy are
tailored to specific circumstances.
7
The nonconsensual sharing of an
individual’s intimate photos should be no different: consent within a
trusted relationship does not equal consent outside of that
relationship. We should no more blame individuals for trusting
loved ones with intimate images than we blame someone for
trusting a financial advisor not to share sensitive information with
strangers on the street.
6. See generally id. (discussing privacy regulations).
7. See generally H
ELEN NISSENBAUM, PRIVACY IN CONTEXT 129 (2010);
D
ANIEL J. SOLOVE, THE FUTURE OF REPUTATION (2007) [hereinafter FUTURE OF
REPUTATION]; DANIEL J. SOLOVE, UNDERSTANDING PRIVACY 47 (2008) [hereinafter
U
NDERSTANDING PRIVACY]; Lior Jacob Strahilevitz, A Social Networks Theory of
Privacy, 72 U.
CHI. L. REV. 919, 923–25 (2005).
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While some of the First Amendment concerns regarding anti-
revenge porn laws are valid, many of them reflect the tendency to
treat sexual autonomy, especially women’s sexual autonomy, as a
category less deserving of respect than other social values. As
scholars like Frederick Schauer and Neil Richards have pointed out,
many regulations of speech and expression proceed without any
strident First Amendment objections, including fraud, trade secrets,
and product labeling.
In this Article we make the case for the direct criminalization of
nonconsensual pornography. Current civil law remedies, including
copyright remedies, are an ineffective deterrent to revenge porn.
Litigation costs are too expensive for most victims, and litigation
may make little sense even for those who can afford to sue if
perpetrators have few assets. While perpetrators may have little
fear of civil litigation or copyright claims, the threat of criminal
penalties is a different matter. Since criminal convictions in most
cases stay on one’s record forever, they are much less likely to be
ignored. While some criminal laws can be mobilized against revenge
porn, on the whole, existing criminal laws simply do not address the
issue.
Criminalizing nonconsensual pornography is appropriate and
necessary to convey the proper level of social condemnation for this
behavior. Given that a response from the criminal justice system is
essential, we hope to help lawmakers interested in drafting such
laws. We offer our suggestions for drafting revenge porn legislation
that would comport with the First Amendment and Due Process
concerns.
This Article will unfold as follows. Part I responds to faulty
assumptions that have obscured a full view of the damage that
revenge pornography inflicts. It corrects misunderstandings about
consent that have prevented us from criminalizing revenge porn.
Part II explores why civil law alone cannot effectively address
nonconsensual pornography. Part III assesses the criminal law
landscape. It discusses the deficits of current criminal law. Then, it
considers current legislative proposals to prohibit revenge porn.
Part IV responds to First Amendment concerns. Part V offers our
recommendations.
I.
MYTHS ABOUT REVENGE PORN
This Part has two objectives. The first is to debunk the notion
that the harm revenge porn inflicts is trivial. Lawmakers are
unlikely to do anything about nonconsensual pornography without a
full appreciation of its harms. The second goal is to tackle society’s
current inability to understand the contextual nature of consent
when it comes to matters of sexual privacy and autonomy. Privacy
law and scholarship has recognized the importance of context in
evaluating consent, and social norms reflect this insight. The same
should be true for matters of intimate sexual conduct.
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A. Understanding Revenge Porn’s Damage
In 2007, a man allegedly made numerous copies of DVDs of his
ex-girlfriend performing sex acts and distributed them on random
car windshields, along with the woman’s name, address, and phone
number.
8
He was angry that the woman had broken off their
relationship.
9
The woman, who had not known that the intimate
acts had been recorded, began receiving visits and phone calls from
strange men who took the video as a sexual proposition.
10
Today, intimate photos are increasingly being distributed
online, potentially reaching thousands, even millions of people, with
a click of a mouse. A person’s nude photo can be uploaded to a
website where thousands of people can view and repost it. In short
order, the image can appear prominently in a search of the victim’s
name. It can be e-mailed or otherwise exhibited to the victim’s
family, employers, coworkers, and friends. The Internet provides a
staggering means of amplification, extending the reach of content in
unimaginable ways.
Revenge porn’s serious consequences warrant its
criminalization. Nonconsensual pornography raises the risk of
offline stalking and physical attack. In a study of 1,244 individuals,
over 50% of victims reported that their naked photos appeared next
to their full name and social network profile; over 20% of victims
reported that their e-mail addresses and telephone numbers
appeared next to their naked photos.
11
Posting someone’s naked
images next to their contact information can inspire strangers to
confront them offline. Many revenge porn victims like Jane rightly
worry that anonymous callers and e-mailers would follow up on
their sexual demands in person.
Victims’ fear can be profound. They do not feel safe leaving
their homes. Jane, for example, did not go to work for days after she
discovered the postings. Hollie Toups, a thirty-three-year-old
teacher’s aide, explained that she was afraid to leave her home after
someone posted her nude photograph, home address, and Facebook
profile on a porn site.
12
“I don’t want to go out alone,” she explained,
“because I don’t know what might happen.”
13
Victims struggle especially with anxiety, and some suffer panic
attacks. Anorexia nervosa and depression are common ailments for
8. Former Boyfriend Pleads No Contest over Sex DVDs, CHESTERFIELD
OBSERVER (Apr. 25, 2007), http://www.chesterfieldobserver.com/news/2007-04-
25/news/009.html.
9. Id.
10. Id.
11. Cyber Civil Rights Statistics on Revenge Porn, at 2 (Oct. 11, 2013) (on
file with authors) [hereinafter Revenge Porn Statistics].
12. Caille Millner, Public Humiliation Over Private Photos, SFG
ATE,
http://www.sfgate.com/opinion/article/Public-humiliation-over-private-photos-
4264155.php#photo-4161587 (last updated Feb. 10, 2013, 3:21 PM).
13. Id.
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individuals who are harassed online.
14
Researchers have found that
cyber harassment victims’ anxiety grows more severe over time.
15
Victims have difficulty thinking positive thoughts and doing their
work. According to a study conducted by the Cyber Civil Rights
Initiative, over 80% of revenge porn victims experience severe
emotional distress and anxiety.
16
Revenge porn is often a form of domestic violence. Frequently,
the intimate images are themselves the result of an abuser’s
coercion of a reluctant partner.
17
In numerous cases, abusers have
threatened to disclose intimate images of their partners when
victims attempt to leave the relationship.
18
Abusers use the threat
of disclosure to keep their partners under their control, making good
on the threat once their partners find the courage to leave.
The professional costs of revenge porn are steep. Because
Internet searches of victims’ names prominently display their naked
images or videos, many lose their jobs. Schools have terminated
teachers whose naked pictures appeared online. A government
agency ended a woman’s employment after a coworker circulated
her nude photograph to colleagues.
19
Victims may be unable to find work at all. Most employers rely
on candidates’ online reputations as an employment screen.
According to a 2009 study commissioned by Microsoft, nearly 80% of
employers consult search engines to collect intelligence on job
applicants, and, about 70% of the time, they reject applicants due to
their findings.
20
Common reasons for not interviewing and hiring
applicants include concerns about their “lifestyle,” “inappropriate”
14. Suicide Spurs Web to Regulation in South Korea, NEWSWEEK (Oct. 14,
2008, 8:00 PM), http://www.thedailybeast.com/newsweek/2008/10/14/when-
words-kill.html.
15. Matt R. Nobles et al., Protection Against Pursuit: A Conceptual and
Empirical Comparison of Cyberstalking and Stalking Victimization Among a
National Sample, J
UST. Q. 1, 20, 22–23 (2012).
16. Revenge Porn Statistics, supra note 11.
17. See, e.g., Katie Smith, What Revenge Porn Did to Me, REFINERY29 (Nov.
18, 2013, 3:15 PM), http://www.refinery29.com/2013/11/57495/revenge-
porn#page-2 (“But about two and a half years into the relationship, he started
badgering me about making a video. He got fixated on it . . . he would ask me,
‘Why don’t you want to do it? Don’t you trust me?’ He just kept asking, and got
more and more mean about it—’Don’t you care about our sex life? Don’t you care
about things not being boring?’”).
18. See, e.g., Annmarie Chiarini, I Was a Victim of Revenge Porn. I Don’t
Want Anyone Else to Face This,
THEGUARDIAN (Nov. 19, 2013, 7:30 AM),
http://www.theguardian.com/commentisfree/2013/nov/19/revenge-porn-victim-
maryland-law-change.
19. Second Amended Complaint at 3, 8, Lester v. Mineta, No. C-04-3074 SI
(N.D. Cal. Mar. 3, 2000), 2006 WL 104226 (noting violations of: (1) The Civil
Rights Act of 1964; (2) The Rehabilitation Act; (3) 42 U.S.C. § 1983 (BIVENS);
(4) 42 U.S.C. § 1985(3); and (5) 42 U.S.C. § 1986 (2000)).
20. Online Reputation in a Connected World,
JOB-HUNT 1, 3, 8 (Jan. 2010),
http://www.job-hunt.org/guides/DPD_Online-Reputation-
Research_overview.pdf.
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online comments, and “unsuitable” photographs, videos, and
information about them.
21
Recruiters do not contact victims to see if they posted the nude
photos of themselves or if someone else did in violation of their trust.
The “simple but regrettable truth is that after consulting search
results, employers don’t call revenge porn victims to schedule”
interviews or to extend offers.
22
Employers do not want to hire
individuals whose search results might reflect poorly on the
employer.
23
To avoid further abuse, targeted individuals withdraw from
online activities, which can be costly in many respects. Closing
down one’s blog can mean a loss of income and other career
opportunities.
24
In some fields, blogging is key to getting a job.
According to technology blogger Robert Scoble, people who do not
blog are “never going to be included in the [technology] industry.”
25
When victims shut down their profiles on social media platforms like
Facebook, LinkedIn, and Twitter, they are saddled with low social
media influence scores that can impair their ability to obtain
employment.
26
Companies like Klout measure people’s online
influence by looking at their number of social media followers,
updates, likes, retweets, and shares. When some employers see low
social media influence scores, they refuse to hire candidates.
27
Aside from these traditional harms, revenge porn can also
amount to a degrading form of sexual harassment. It exposes
victims’ sexuality in humiliating ways. Victims’ naked photos
appear on slut-shaming
28
sites, such as Cheaterville.com and
21. MATT IVESTER, LOL . . . OMG! WHAT EVERY STUDENT NEEDS TO KNOW
ABOUT ONLINE REPUTATION MANAGEMENT, DIGITAL CITIZENSHIP AND
CYBERBULLYING 95 (2011).
22. Citron, supra note 1.
23. To be sure, employers refuse to interview or hire individuals for a
variety of reasons, including, but not limited to, nonconsensual pornography. It
cannot be denied, however, that revenge porn has a negative impact.
Employers have no incentive to hire someone whose online reputation could
jeopardize the esteem of clients and business partners. Their economic
incentive is to attract more business. Avoiding hiring someone who could cast
doubt on the firm’s credibility is just smart business.
24. See Penelope Trunk, Blog Under Your Real Name, and Ignore the
Harassment, P
ENELOPE TRUNK (July 19, 2007),
http://blog.penelopetrunk.com/2007/07/19/blog-under-your-real-name-and-
ignore-the-harassment (explaining that women who write under pseudonyms
miss opportunities associated with blogging under their real names, such as
networking opportunities and expertise associated with the author’s name).
25. Ellen Nakashima, Sexual Threats Stifle Some Female Bloggers, W
ASH.
POST, Apr. 30, 2007, at A1.
26. Seth Stevenson, Popularity Counts, W
IRED, May 2012, at 120, 122.
27. Id. at 120–22.
28. “Slut-shaming” criticizes women for sexual activity. As noted journalist
Emily Bazelon explains, slut-shaming is “retrograde, the opposite of feminist.
Calling a girl a slut warns her that there’s a line: she can be sexual but not too
sexual.” E
MILY BAZELON, STICKS AND STONES: DEFEATING THE CULTURE OF
BULLYING AND REDISCOVERING THE POWER OF CHARACTER AND EMPATHY 95
(2013).
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MyEx.com. Once their naked images are exposed, anonymous
strangers send e-mail messages that threaten rape. Some have said:
“First I will rape you, then I’ll kill you.”
29
Victims internalize these
frightening and demeaning messages.
30
Women would more likely
suffer harm as a result of the posting of their naked images than
their male counterparts. Gender stereotypes help explain why—
women would be seen as immoral sluts for engaging in sexual
activity, whereas men’s sexual activity is generally a point of
pride.
31
While nonconsensual pornography can affect both men and
women, empirical evidence indicates that nonconsensual
pornography primarily affects women and girls. In a study
conducted by the Cyber Civil Rights Initiative, 90% of those
victimized by revenge porn were female.
32
Nonconsensual
pornography, like rape, domestic violence, and sexual harassment,
belongs to the category of violence that violates legal and social
commitments to equality. It denies women and girls control over
their own bodies and lives. Not only does it inflict serious and, in
many cases, irremediable injury on individual victims, it constitutes
a vicious form of sex discrimination.
Revenge porn is a form of cyber harassment and cyber stalking
whose victims are predominantly female.
33
The U.S. National
Violence Against Women Survey reports that 60% of cyber stalking
victims are women.
34
For over a decade, Working to Halt Online
Abuse (“WHOA”) has collected information from cyber harassment
victims. Of the 3,787 individuals reporting cyber harassment to
WHOA from 2000 to 2012, 72.5% were female, 22.5% were male, and
5% were unknown.
35
A victim’s actual or perceived sexual
29. DANIELLE KEATS CITRON, HATE CRIMES IN CYBERSPACE (forthcoming
2014) (manuscript at 20).
30. Id. at 21.
31. Id. There are exceptions, of course.
32. See Revenge Porn Statistics, supra note 11.
33. Cyber harassment is often understood to involve the intentional
infliction of severe emotional distress accomplished by online speech that is
persistent enough to amount to a “course of conduct,” rather than an isolated
incident. C
ITRON, supra note 29, at 6. Cyber stalking has a more narrow
meaning: it covers an online “course of conduct” designed to cause someone to
fear bodily harm that would cause a reasonable person to fear for his or her
safety. Id.
34. Molly M. Ginty, Cyberstalking Turns Web Technologies into Weapons;
Women Face Violence via Social Media, O
TTAWA CITIZEN, Apr. 7, 2012, at J1.
35. Comparison Statistics 2000–2012, W
ORKING TO HALT ONLINE ABUSE 1, 1
(2014), http://www.haltabuse.org/resources/stats/Cumulative2000-2012.pdf.
WHOA’s statistics are gleaned from individuals who contact their organization
through their website. The organization’s statistics are not as comprehensive
as the Bureau of Justice Statistics, which sponsored a national survey of
individuals who experienced offline and online stalking. According to the
Bureau of Justice Statistics, an estimated 3.4 million people experienced real
space stalking alone, while an estimated 850,000 individuals experienced
stalking with both online and offline features. Katrina Baum et al., Stalking
Victimization in the United States, U.S.
DEP’T JUSTICE 1, 5 (2009),
http://www.ovw.usdoj.gov/docs/stalking-victimization.pdf.
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orientation seems to play a role as well. Research suggests that
sexual minorities are more vulnerable to cyber harassment than
heterosexuals.
36
B. The Consent Conundrum
Consensual sharing of intimate images is often done with the
implied or express understanding that such images will remain
confidential. As revenge porn victims have told us time and again,
they shared their explicit images or permitted the naked photos to
be taken because, and only because, their partners assured them
that the explicit images would be kept confidential.
Nonetheless, the public tends to have difficulty recognizing the
significance of such implied confidences in sexual contexts. Critics
resist the criminalization of revenge porn on the grounds that
consensual sharing in one context—a trusted relationship—
translates into consent in other contexts—posting to the world.
That understanding of consent not only runs against widely shared
intuitions about other activities but also against the insights of
privacy law and scholarship.
Consent to share information in one context does not serve as
consent to share this information in another context. When a person
gives her credit card to a waiter, she is not consenting to let the
waiter use that card to make personal purchases. When a person
entrusts a neighbor with her alarm code for emergencies, she is not
consenting to allow her neighbor to give the code out to strangers.
What lovers share with each other is not equivalent to what they
share with coworkers, acquaintances, or employers. Consent is
contextual; it is not an on/off switch.
Consent’s contextual nature is a staple of information privacy
law. A core teaching of the Fair Information Privacy Principles is
that sharing information for one purpose is not permission to share
for other uses. Policymakers have long recognized the importance of
context to the sharing of sensitive information. Congress passed the
Gramm-Leach-Bliley Act to ensure that the trust of financial
institutions’ customers would not be betrayed.
37
With few
exceptions, financial institutions cannot share their customers’
financial information with third parties.
38
Similarly, the Video
Privacy Protection Act recognizes that individuals may be willing to
share their preferences for certain kinds of films with their video
providers but not with the world at large.
39
These laws recognize
36. Jerry Finn, A Survey of Online Harassment at a University Campus, 19
J.
INTERPERSONAL VIOLENCE 468, 477 (2004).
37. See 15 U.S.C. §§ 6801(a) (2012) (addressing that “[i]t is the Policy of
Congress that each financial institution has an affirmative and continuing
obligation to respect the privacy of its customers . . . .”)
38. See Id.
39. See 18 U.S.C. § 2710 (2012).
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the contextual nature of consent—disclosing information to one
entity does not signal consent to pass it on to others.
40
In its recent report, Protecting Consumer Privacy in an Era of
Rapid Change, the Federal Trade Commission (“FTC”) laid out best
privacy practices principles for private entities.
41
A key
recommendation was the recognition that a consumer’s consent to
share information in one context does not translate into consent to
share that information in other contexts.
42
In instances where
consumers would not expect their information to be shared with
third parties, companies should ask consumers for their permission
for such sharing.
43
As the FTC underscored, when data is collected
for one purpose and then treated differently, the failure to respect
the original expectation is a cognizable harm.
44
The FTC’s report resonates with the work of privacy scholars.
In her book Privacy in Context, Helen Nissenbaum argues that
privacy is not a binary concept.
45
Information is neither wholly
private nor wholly public. Context and social norms determine the
question. A person, for instance, might be willing to share personal
information with her doctor but not her employer. As Joel
Reidenberg has argued, using data for a purpose other than the one
the subject has permitted should be considered a cognizable harm.
46
Lior Strahilevitz’s social network theory of privacy explains that
information may deserve privacy protection even if it is shared with
a significant number of people.
47
A group’s internal norms of
information disclosure play a key role in determinations about
privacy expectations. For example, an HIV-positive person who told
family, friends, and a support group about his HIV status did not
extinguish his privacy interest in the information because the norm
was that it would not be revealed with others who knew him or to
the public at large.
48
Daniel Solove’s pragmatic conception of
40. The so-called “third-party doctrine” in Fourth Amendment
jurisprudence suggests the opposite, but such an understanding is inapt here
for two reasons: one, the Fourth Amendment concerns citizens’ relationship to
the government, not to other private citizens, and two, the doctrine has been
strongly criticized even within the Fourth Amendment context, especially in the
wake of the National Security Administration’s spying scandals.
41. See F
ED. TRADE COMM’N, PROTECTING CONSUMER PRIVACY IN AN ERA OF
RAPID CHANGE (2010), available at http://www.ftc.gov/sites/
default/files/documents/reports/federal-trade-commission-bureau-consumer-
protection-preliminary-ftc-staff-report-protecting-
consumer/101201privacyreport.pdf.
42. See id. at vi.
43. See, e.g., id. at vi, 55.
44. Id. at 20 n.49 (quoting Joel R. Reidenberg, Privacy Wrongs in Search of
Remedies, 54 H
ASTINGS L.J. 877, 881 (2003)).
45. N
ISSENBAUM, supra note 7, at 144.
46. Joel R. Reidenberg, Privacy Wrongs in Search of Remedies, 54
H
ASTINGS L.J. 877, 881 (2003).
47. See generally Strahilevitz, supra note 7.
48. Multimedia WMAZ, Inc. v. Kubach, 443 S.E.2d 491, 494 (Ga. Ct. App.
1994); Strahilevitz, supra note 7.
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privacy envisions context as central to understanding and
addressing contemporary privacy problems.
49
As privacy law and literature suggest, consent is situational.
Revenge porn victims share sexually explicit photographs of
themselves with others based on the understanding that the photos
remain confidential. Sharing sensitive information, whether a nude
photo, Social Security number, or HIV status, with a confidant does
not mean one has waived all privacy expectation in the
information.
50
II. THE INADEQUACY OF CIVIL ACTIONS
Some commentators oppose regulatory proposals based on the
argument that existing civil remedies can ably address revenge
porn.
51
Unfortunately, that is not the case. Civil law can offer
modest deterrence and remedy, but practical concerns often render
them more theoretical than real. As this Part concludes, more
effective disincentives for nonconsensual pornography are needed
than what civil actions can provide.
A. Tort Law
In theory, tort law reaches some of the harm suffered by
revenge porn victims. Victims could sue for intentional infliction of
emotional distress, recovering for severe emotional suffering
intentionally or recklessly caused. Individuals are not expected to
tolerate cruel invasions of their privacy that are extreme and
outrageous.
52
The privacy tort of public disclosure of private fact
could provide relief. Key to this tort is the public’s lack of a
legitimate interest in the disclosed information. Publishing a
private person’s nude photos online is not a matter that legitimately
concerns the public.
53
Courts have recognized public disclosure
49. UNDERSTANDING PRIVACY, supra note 7; Danielle Keats Citron & Leslie
Meltzer Henry, Visionary Pragmatism and the Value of Privacy in the Twenty-
First Century, 108 M
ICH. L. REV. 1107, 1112 (2010) (reviewing Understanding
Privacy).
50. See, e.g., Kubach, 443 S.E.2d at 494. The refusal to recognize the
contextual nature of consent may stem from a moral disapproval of intimate
photographs. Some might argue that contextual integrity, as Nissenbaum calls
it, is not extended to certain “morally questionable” content. N
ISSENBAUM,
supra note 7. But determinations of what is morally questionable vary widely
and are generally not a suitable basis for law.
51. See, e.g., Sarah Jeong, Revenge Porn Is Bad. Criminalizing It Is Worse,
W
IRED (Oct. 28, 2013, 9:30 AM), http://www.wired.com/opinion/2013/10/why-
criminalizing-revenge-porn-is-a-bad-idea/.
52. Cristina Carmody Tilley, Rescuing Dignitary Torts from the
Constitution, 78 B
ROOK. L. REV. 65, 65 (2012).
53. See Daily Times Democrat v. Graham, 162 So. 2d 474, 477–78 (Ala.
1964) (upholding disclosure claims where newspaper published picture of a
woman whose body was exposed after her dress was blown up by air jets
because there was “nothing of legitimate news value in the photograph” and
because, not only was the photograph embarrassing, it could be properly
classified as obscenity given its offensiveness to modesty and the involuntary
nature of the exposure to the public).
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claims where the plaintiff shared private information with one other
trusted person.
54
Revenge porn victims have brought tort claims and won. A
woman sued her ex-boyfriend after he posted her nude photographs
on twenty-three adult websites next to her contact information and
alleged interest in a “visit or phone call.”
55
Her ex created an online
advertisement that said she wanted “no strings attached”
masochistic sex. Strange men left her frightening voice mails.
56
The
woman suffered anxiety and a bout of shingles. She worried the
abuse would impact her security clearance at work. A judge
awarded the woman $425,000 for intentional infliction of emotional
distress, defamation, and public disclosure of private fact.
57
The problem, however, is that most victims lack resources to
bring civil suits. As we have heard from countless victims, many
cannot afford to sue their perpetrators. Having lost their jobs due to
the online posts, they cannot pay their rent, let alone cover lawyer’s
fees. It may also be hard to find lawyers willing to take their case.
Most lawyers do not know this area of law and are not prepared to
handle the trickiness of online harassment evidence.
What is more, since plaintiffs in civil court generally have to
proceed under their real names, victims may be reluctant to sue for
fear of unleashing more unwanted publicity. Generally, courts
disfavor pseudonymous litigation because it is assumed to interfere
with the transparency of the judicial process, to deny a defendant’s
constitutional right to confront his or her accuser, and to encourage
frivolous claims from being asserted by those whose names and
reputations would not be on the line. Arguments in favor of Jane
Doe lawsuits are considered against the presumption of public
openness, a heavy presumption that often works against plaintiffs
asserting privacy invasions.
58
Even in ideal circumstances, where pseudonymous litigation is
permitted and where a lawyer is willing to take the case, it may be
hard to recover much in the way of damages. Defendants often do
54. See generally DANIEL J. SOLOVE & PAUL M. SCHWARTZ, INFORMATION
PRIVACY LAW (4th ed. 2011) (discussing court decisions involving public
disclosure of private information).
55. Taylor v. Franko, No. 09-00002 JMS/RLP, 2011 WL 2746714, at *3 (D.
Haw. June 12, 2011).
56. Id.
57. Id. at *5. Not only did the court find that the plaintiff sufficiently
stated a claim for intentional infliction of emotional distress, it upheld the
plaintiff’s claim for negligent infliction of emotional distress despite the general
requirement of physical injury. The unique circumstances of the case made
clear that the plaintiff’s distress was trustworthy and genuine. Id.; see also Doe
v. Hofstetter, No. 11-cv-02209-DME-MJW, 2012 WL 2319052, at *8 (D. Colo.
June 13, 2012) (awarding plaintiff damages for intentional infliction of
emotional distress where defendant posted plaintiff’s intimate photographs
online, e-mailed them to her husband, and created fake Twitter accounts
displaying them).
58. Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005) (“The public has an
interest in knowing what the judicial system is doing, an interest frustrated
when any part of litigation is conducted in secret.”).
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not have deep pockets. Victims may be hard pressed to expend their
time and money on lawsuits if defendants are effectively judgment
proof. Then too, an award of damages is no assurance that websites
will comply with requests to take down the images. The removal of
images is the outcome that most victims desire above all else, and
civil litigation may be unable to make that happen.
Some argue that in cases where individual perpetrators are
judgment proof, victims can bring claims against the websites that
publish revenge porn and in turn drive the demand for it. Generally
speaking, site operators are immunized from tort liability related to
a third party’s content. Section 230 of the Communications Decency
Act provides, “[n]o 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.”
59
Courts have interpreted § 230 to largely immunize from liability
website owners and operators for tortious material submitted by
third-party users. According to § 230, “[n]o cause of action may be
brought and no liability may be imposed under any State or local
law that is inconsistent with this section,” which indicates that the
statute trumps civil and criminal state laws.
60
If a site’s user hacks
into a person’s computer to obtain sexually explicit photographs and
submits the photos to a revenge porn website, the site owner would
not be liable for displaying it.
61
B. Copyright Law
Copyright law can seem like a promising avenue for redress
because § 230 does not immunize websites from federal intellectual
property claims.
62
If a victim took the image herself then she would
be considered the copyright owner. In that case, the victim could file
59. 47 U.S.C. § 230(c)(1) (2012).
60. Id. § 230(e)(3). A recent letter from the National Association of
Attorneys General urged Congress to revise § 230 so that it cannot preempt
state criminal law. The current wording and interpretation of § 230, these
Attorneys General maintain, impairs criminal prosecutions of child trafficking.
See Letter to National Association of Attorneys General (July 23, 2013),
available at
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1465&context=hi
storical.
61. We are leaving for other work the question of whether § 230’s immunity
should be narrowed or if the statute in its current form should be understood as
failing to immunize site operators who actively facilitate the posting of revenge
porn. One of us, Citron, supports a narrow amendment to § 230 for sites whose
principal purpose is to host revenge porn. See C
ITRON, supra note 29, at 176–
77. The other, Franks, believes that a Ninth Circuit decision, Roommates.Com,
supports the notion that sites that purposely solicit the posting of revenge porn
are effectively cocreators of such content and thus enjoy no immunity. Because
we agree on so much, we thought it wise to note our disagreement on this issue
and leave exploration of them for separate endeavors. See Fair Hous. Council of
San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1164–65 (9th
Cir. 2008).
62. 47 U.S.C. § 230(e)(2) (“Nothing in this section shall be construed to
limit or expand any law pertaining to intellectual property.”).
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a § 512 notice after registering the copyright. The site operator
would have to take down the allegedly infringing content promptly
or lose their immunity under the Digital Millennium Copyright
Act.
63
Even if the victim took the photo herself, however, her right to
sue for a copyright violation may be illusory. Revenge porn sites
often ignore requests for removal because they are not worried about
being sued. They know that most victims cannot afford to hire a
lawyer.
If a victim did not take the sexually explicit photo herself, she
has no right to ask a site to take it down because the copyright
belongs to the photographer. Some lawyers and scholars have
suggested that an expansive conception of joint authorship might
cover these victims,
64
but this theory is untested and may have little
traction.
65
In any event, even successful copyright actions cannot put the
genie back in the bottle. Once an image is released, getting it
removed from one site does not mean that it will be removed from
every other site to which it has migrated. Even more importantly,
the suggestion that copyright law is an adequate response to
nonconsensual porn mischaracterizes the harm as one of property
rights. While copyright remedies can certainly exist alongside and
supplement other avenues of redress for victims, the harm involved
in nonconsensual pornography cannot be reduced to a property
claim.
C. Sexual Harassment Law
Does revenge porn constitute actionable sexual harassment? As
defined by the Equal Employment Opportunity Commission, sexual
harassment includes “[u]nwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct of a sexual
nature.”
66
Under current law, protections against sexual
harassment have little force outside of employment and educational
settings.
67
Accordingly, while nonconsensual pornography that is
63. Site operators are not liable for infringement if they take down the
allegedly infringing content. See 17 U.S.C. § 512(a) (2012).
64. See Derek Bambauer, Beating Revenge Porn with Copyright (Jan. 25,
2013), https://blogs.law.harvard.edu/infolaw/2013/01/25/beating-revenge-porn-
with-copyright/.
65. See generally Derek Bambauer, Exposed, 98 M
INN. L. REV. (forthcoming
2014).
66. 29 C.F.R. § 1604.11(a) (2013).
67. In different ways, we have argued that the protection against sexual
harassment, as a form of sex discrimination, should not be so limited. Compare
Mary Anne Franks, Sexual Harassment 2.0, 71 M
D. L. REV. 655, 657 (2012)
(contending that site operators should be liable for sexual harassment hosted on
their sites), with Danielle Keats Citron, Cyber Civil Rights, 89 B.U.
L. REV. 61,
91–95 (2009) (arguing that cyber harassment ought to be addressed as civil
rights violations and thus harassers should face liability under anti-
discrimination laws, including Title VII of the Civil Rights Act of 1964 and
Section 1981 of Title 42, among other claims). See also Danielle Keats Citron &
Helen Norton, Intermediaries and Hate Speech: Fostering Digital Citizenship for
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produced, distributed, or accessed by a victim’s coworkers,
employers, school officials, or fellow students raises the possibility of
a hostile environment sexual harassment claim under Title VII of
the Civil Rights Act of 1964 or Title IX of the Education
Amendments of 1972, such claims would not be available to address
nonconsensual pornography falling outside of this narrow category.
As this discussion shows, civil law cannot meaningfully deter
and redress revenge porn. We now turn to the potential for a
criminal law response.
III.
CRIMINAL LAW’S POTENTIAL TO COMBAT REVENGE PORN
A criminal law solution is essential to deter judgment-proof
perpetrators. As attorney and revenge porn expert Erica Johnstone
puts it, “[e]ven if people aren’t afraid of being sued because they
have nothing to lose, they are afraid of being convicted of a crime
because that shows up on their record forever.”
68
Nonconsensual
pornography’s rise is surely related to the fact that malicious actors
have little incentive to refrain from such behavior. While some
critics believe that existing criminal law adequately addresses
nonconsensual pornography, this Part highlights how existing
criminal law fails to address most cases of revenge porn.
A. The Importance of Criminal Law
Criminal law has long prohibited privacy invasions and certain
violations of autonomy. Criminal law is essential to send the clear
message to potential perpetrators that nonconsensual pornography
inflicts grave privacy and autonomy harms that have real
consequences and penalties.
69
While we share general concerns about over-incarceration,
rejecting the criminalization of serious harms is not the way to
address those concerns. We are also sensitive to objections that
criminalizing revenge porn might reinforce the harmful and
erroneous perception that women should be ashamed of their bodies
or their sexual activities, but maintain that recognizing and
Our Information Age, 91 B.U. L. REV. 1435, 1436–53 (2011) (arguing that cyber
harassment interferes with victims’ ability to interact as digital citizens);
Danielle Keats Citron, Law’s Expressive Value in Combating Cyber Gender
Harassment, 108 M
ICH. L. REV. 373, 375–77 (2009) (arguing that a cyber civil
rights legal agenda has a crucial role in educating the public, law enforcement,
courts, and victims about cyber harassment’s interference with victims’
equality). Citron’s forthcoming book on cyber harassment proposes an
amendment to Title VII that would permit suits against perpetrators of
discriminatory cyber harassment for interfering with victims’ important
economic and educational opportunities. C
ITRON, supra note 29.
68. Tracy Clark-Flory, Criminalizing “Revenge Porn,” S
ALON (Apr. 6, 2013,
9:00 PM), http://www.salon.com/2013/04/07/criminalizing_revenge_porn/.
69. See Mary Anne Franks, Why Revenge Porn Must Be a Crime,
NYD
AILYNEWS (Mar. 17, 2014), http://www.nydailynews.com/opinion/revenge-
porn-crime-article-1.1702725.
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protecting sexual autonomy does exactly the opposite.
70
A criminal
law solution would send the message that individuals’ bodies
(mostly female bodies) are their own and that society recognizes the
grave harms that flow from turning individuals into objects of
pornography without their consent.
In this way, a criminal law approach will help us conceptualize
the involuntary publication of someone’s sexually explicit images as
a form of sexual assault. When sexual abuse is inflicted on an
individual’s physical body, it is considered rape or sexual assault.
The fact that nonconsensual pornography does not involve physical
contact does not change the fact that it is a form of sexual abuse.
Federal and state criminal laws regarding voyeurism demonstrate
that physical contact is not necessary to cause great harm and
suffering.
Video voyeurism laws punish the nonconsensual recording of a
person in a state of undress in places where individuals enjoy a
reasonable expectation of privacy.
71
Criminal laws prohibiting
voyeurism rest on the commonly accepted assumption that
observing a person in a state of undress or engaged in sexual
activity without that person’s consent not only inflicts dignitary
harms upon the individual observed, but also inflicts a social harm
serious enough to warrant criminal prohibition and punishment.
International criminal law provides precedent and perspective
on this issue. Both the International Criminal Tribunal for Rwanda
(“ICTR”) and the International Criminal Tribunal for the former
Yugoslavia (“ICTY”) have employed a definition of sexual violence
that does not require physical contact. In both tribunals, forced
nudity was found to be a form of sexual violence.
72
In the Akayesu
case, the ICTR found that “[s]exual violence is not limited to
physical invasion of the human body and may include acts which do
not involve penetration or even physical contact.”
73
In the
Furundzija case, the ICTY similarly found that international
criminal law punishes not only rape, but also “all serious abuses of a
sexual nature inflicted upon the physical and moral integrity of a
person by means of coercion, threat of force or intimidation in a way
that is degrading and humiliating for the victim’s dignity.”
74
70. A comparison can be made here to rape laws. While it is possible to
interpret the criminal punishment for rape as reinforcing the view that women
who are raped are “damaged,” we do not think this is a necessary or correct
interpretation. In fact, the real danger lies in failing to seriously punish
violations of sexual autonomy.
71. 18 U.S.C. § 1801 (2012).
72. See A
NN-MARIE DE BROUWER, SUPRANATIONAL CRIMINAL PROSECUTION OF
SEXUAL VIOLENCE 135–37 (2005); LISTENING TO THE SILENCES: WOMEN AND WAR
146–47 (Helen Durham & Tracey Gurd eds., 2005).
73. Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 688 (Int’l
Crim. Trib. for Rwanda Sept. 2, 1998),
http://www.unictr.org/Portals/0/Case/English/Akayesu/judgement/akay001.pdf.
74. Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment, ¶ 186 (Int’l
Crim. Trib. for the Former Yugoslavia Dec. 10, 1998),
http://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf.
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The legal and social condemnation of child pornography
exemplifies our collective understanding that the production,
viewing, and distribution of certain kinds of sexual images are
harmful. In New York v. Ferber,
75
the United States Supreme Court
recognized that the distribution of child pornography is distinct from
the underlying crime of the sexual abuse of children.
76
The Court
observed that “[t]he distribution of photographs and films depicting
sexual activity by juveniles . . . [is] a permanent record of the
children’s participation and the harm to the child is exacerbated by
their circulation.”
77
When images and videos of sexual assaults and
surreptitious observation are distributed and consumed, they inflict
further harms on the victims and on society connected to, but
distinct from, the criminal acts to which the victims were originally
subjected.
78
The trafficking of this material increases the demand
for images and videos that exploit the individuals portrayed. This is
why the Court in Ferber held that it is necessary to shut down the
“distribution network” of child pornography to reduce the sexual
exploitation of children: “The most expeditious if not the only
practical method of law enforcement may be to dry up the market
for this material by imposing severe criminal penalties on persons
selling, advertising, or otherwise promoting the product.”
79
Nonconsensual pornography raises similar concerns. Disclosing
sexually explicit images without permission can have lasting and
destructive consequences. Victims often feel shame and humiliation
every time they see them and every time they think that others are
viewing them.
Consider the experience of sports reporter Erin Andrews. After
a stalker secretly taped her while she undressed in her hotel room,
he posted as many as ten videos of her online.
80
Google Trends data
suggested that just after the release of the videos, much of the
nation began looking for some variation of “Erin Andrews peephole
video.”
81
Nearly nine months later, Andrews explained: “I haven’t
stopped being victimized—I’m going to have to live with this
forever . . . . When I have kids and they have kids, I’ll have to
75. 458 U.S. 747 (1982).
76. Id. at 764.
77. Id. at 759.
78. See Emily Bazelon, The Price of a Stolen Childhood, N.Y.
TIMES MAG.
(Jan. 24, 2013), http://www.nytimes.com/2013/01/27/magazine/how-much-can-
restitution-help-victims-of-child-pornography.html?pagewanted=all&_r=0.
79. Ferber, 458 U.S. at 760.
80. Lynn Lamanivong, Erin Andrews’ Video Voyeur Gets 2½ Years, CNN
(Mar. 16, 2010, 9:49 AM),
http://www.cnn.com/2010/CRIME/03/15/espn.erin.andrews.sentence/. See
Danielle Keats Citron, Mainstreaming Privacy Torts, 98 C
ALIF. L. REV. 1805,
1813–14 (2010) (discussing privacy harms experienced by Erin Andrews).
81. Steve Johnson, Erin Andrews’ Nude Video Coverage Full of Hypocrisy,
C
HI. TRIB. (July 23, 2009), http://articles.chicagotribune.com/2009-07-
23/entertainment/0907220636_1_erin-andrews-video-web.
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explain to them why this is on the Internet.”
82
She further lamented
that when she walks into football stadiums to report on a game, she
faces the taunts of fans who have seen her naked online.
83
She
explained that she “felt like [she] was continuing to be victimized”
each time she talked about it.
84
Andrews’s experience is echoed by that of Lena Chen, who
allowed her ex-boyfriend to take pictures of them having sex.
85
After he betrayed her trust and posted the pictures online, the
pictures went viral.
86
As Chen explained, feeling ashamed of her
sexuality was not something that came naturally to her, but it is
now something she knows inside and out.
87
Victims of
nonconsensual pornography are harmed each time a person views or
shares their intimate images.
B. Current Criminal Law’s Limits
Existing federal and state criminal laws have limited
application to the initial posters of nonconsensual pornography and
the laws have even less force with regard to site operators. This
Subpart first explores the potential of criminal harassment statutes
in pursuing the original discloser. Then, it turns to the possibility of
extortion and child pornography charges against revenge porn site
operators.
1. Punishing original disclosers under criminal law
Many scholars believe that existing criminal law adequately
addresses revenge porn. Professor Eric Goldman, for instance,
argues that criminal harassment laws punish the distribution of
sexually explicit images when there is intent to harm, but that is not
always true.
88
Two potential hurdles stand in the way.
The first hurdle is that criminal harassment and stalking laws
only apply to defendants who engage in repeated harassing acts.
The federal cyber stalking statute, 18 U.S.C. § 2261A, bans as a
felony the use of any “interactive computer service” to engage in a
“course of conduct” intended to harass or intimidate someone in
another state that either places that person in reasonable fear of
82. Leslie Casimir, The ESPN Girl Takes a Stand, GLAMOUR (Mar. 5, 2010),
http://www.glamour.com/inspired/magazine/2010/03/the-espn-girl-takes-a-
stand.
83. Id.
84. Michael Y. Park, Erin Andrews Calls Peeping-Tom Video a ‘Nightmare,’
P
EOPLE (Sept. 1, 2009, 11:50 AM),
http://www.people.com/people/article/0,,20301731,00.html.
85. Lena Chen, I Was the Harvard Harlot, S
ALON (May 23, 2011, 9:01 PM),
http://www.salon.com/2011/05/24/harvard_harlot_sexual_shame/.
86. Id.
87. Id.
88. See Eric Goldman, California’s New Law Shows It’s Not Easy to
Regulate Revenge Porn, F
ORBES (Oct. 8, 2013, 12:03 PM),
http://www.forbes.com/sites/ericgoldman/2013/10/08/californias-new-law-shows-
its-not-easy-to-regulate-revenge-porn/.
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serious bodily injury or death or that would reasonably be expected
to cause the person to suffer “substantial emotional distress.”
89
A single posting of someone’s name, address, and sexually
explicit image can cause serious damage but would not amount to a
harassing “course of conduct.” A revenge porn post can go viral, but
the poster who started the cascade could evade harassment charges.
As Jane’s experience attests, a single post, e-mail, or other
disclosure of nonconsensual pornography can cause grave harm.
90
The second problem is that some state harassment laws only
apply to persistent abuse communicated directly to victims. A New
York state court recently dismissed charges against a man who
posted his ex-girlfriend’s nude photos on Twitter and sent the photos
to the woman’s employer and sister.
91
The court justified its
dismissal of the aggravated harassment charge on the grounds that
the man had not sent the nude photos to the woman herself, but
rather to others.
92
Revenge porn posted on third-party sites would
not be banned under harassment statutes that require direct contact
with victims.
93
Even when revenge porn does fit the definition of criminal
harassment, police may decline to get involved. Victims are often
told the behavior is not serious enough for an in-depth
investigation.
94
“They are shooed away because, officers say, they
89. 18 U.S.C. § 2261A(2) (2012). Under the federal cyber stalking statute,
defendants can be punished for up to five years in jail and fined $250,000.
Many states similarly define criminal cyber harassment but treat it as a
misdemeanor with modest sentences and fines. See, e.g., M
ASS. ANN. LAWS ch.
265, § 43A (LexisNexis 2010) (covering a willful and malicious engagement in a
pattern of acts or series of acts via e-mail or “internet communications” that is
directed at a specific person, which seriously alarms that person and would
cause a reasonable person to suffer substantial emotional distress); S
USAN
PRICE, CONN. GEN. ASSEMB. OFFICE LEGIS. RESEARCH, 2012-R-0293, OLR
BACKGROUNDER: CYBERSTAKING (2012) (describing variations in the thirty-four
state cyber stalking laws surveyed by the National Conference of State
Legislatures).
90. Unfortunately, even if revenge porn is part of a broader course of
harassing conduct, law enforcement routinely refuses to take it seriously
because they lack technical understanding of the problem and believe that
conduct regarding sexually intimate images is innocuous. Danielle Keats
Citron, Law’s Expressive Value in Combating Cyber Gender Harassment, 108
M
ICH. L. REV. 373, 402 (2009). That problem extends to revenge porn as well.
91. See Mary Anne Franks, We Need New Laws to Put a Stop to Revenge
Porn, I
NDEPENDENT (Feb. 23, 2014),
http://www.independent.co.uk/voices/comment/we-need-new-laws-to-put-a-stop-
to-revenge-porn-9147620.html.
92. People v. Barber, 2014 N.Y. Slip. Op. 50193(U) (N.Y. Sup. Ct. Feb. 18,
2014); Erin Donaghue, Judge Throws Out New York Revenge Porn Case, CBS
(Feb. 25, 2014, 4:42 PM), http://www.cbsnews.com/news/judge-throws-out-new-
york-revenge-porn-case/.
93. Id.
94. See Danielle Keats Citron, Law’s Expressive Value in Combating Cyber
Gender Harassment, 108 M
ICH. L. REV. 373, 375–76 (2009) (highlighting the
tendency of law enforcement to dismiss harassment complaints).
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are to blame for the whole mess, since they chose to share their
intimate pictures.”
95
Consider Holly Jacobs’s case. Hundreds of porn and revenge
porn sites featured her nude images next to her work bio and e-mail
address. Some posts falsely claimed that she would have sex for
money and that she had slept with her students. Law enforcement
officers told her that because she voluntarily gave the photos to her
ex-boyfriend, he owned them and could freely share them.
Jacobs refused to give up on the potential for criminal law.
After contacting U.S. Senator Marco Rubio’s office, the Florida State
Attorney’s office took up her case and charged her ex with a
misdemeanor count of cyber stalking.
96
Investigators traced one of
the porn posts to her ex’s IP address. They told Jacobs that they
needed a warrant to search his computer for further evidence
because her ex had claimed that he had been hacked and denied
releasing Jacobs’s pictures.
The charges against her ex were dismissed when prosecutors
decided they could not justify seeking a warrant for a misdemeanor
case. Their hands were tied, they said, even though “I’ve been
hacked” is a standard defense in cyber stalking cases. Jacobs’s case
apparently was not serious enough for the police to obtain a warrant
to search a defendant’s computer or home.
97
2. Prosecuting site operators for extortion and child
pornography
What about website operators’ criminal liability under federal
criminal law? Although § 230 immunity is broad, it is not absolute.
It exempts from its reach federal criminal law, intellectual property
law, and the Electronic Communications Privacy Act. As § 230(e)
provides, the statute has “[n]o effect” on “any [f]ederal criminal
statute” and does not “limit or expand any law pertaining to
intellectual property.”
98
The recent federal prosecution against revenge porn site
operator Hunter Moore has been invoked as support for the notion
that no new laws are needed to take on revenge porn. In December
2013, federal prosecutors indicted Moore for conspiring to hack into
people’s computers to steal their nude images.
99
According to the
indictment, Moore paid a computer hacker to access women’s
password-protected computers and e-mail accounts to steal their
95. Danielle Citron, How to Make Revenge Porn a Crime: Worried About
Trampling on Free Speech? Don’t Be., S
LATE (Nov. 7, 2013, 1:04 PM),
http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/making_
revenge_porn_a_crime_without_trampling_free_speech.html.
96. Id.
97. C
ITRON, supra note 29 (discussing in detail Holly Jacobs’s revenge porn
experience); Citron,
supra note 90.
98. 47 U.S.C. § 230(e) (2012).
99. Jessica Roy, Revenge-Porn King Hunter Moore Indicted on Federal
Charges, T
IME (Jan. 23, 2014), http://time.com/1703/revenge-porn-king-hunter-
moore-indicted-by-fbi/.
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nude photos for financial gain—profits for his revenge porn site Is
Anyone Up.
100
While the prosecution of Moore is cause for celebration, it is a
mistake to draw from it the conclusion that existing laws are
sufficient to address revenge porn. The fact that one revenge porn
site owner allegedly broke numerous federal laws in running a
revenge porn website does not change the fact that he is facing no
charges for publishing the content itself,
101
and that the next
revenge porn entrepreneur will no doubt learn not to make the same
mistakes as Hunter Moore.
State prosecutors are currently pursuing extortion charges
against site operators who call for posters to upload their exes’
naked images and then charge a hefty fee for the removal of those
photos. There is a strong argument that § 230’s immunity does not
apply to those who extort victims whose predicament they have
helped orchestrate. California Attorney General Kamala Harris has
brought the first cases to press the question.
In December 2013, the operator of revenge porn site
UGotPosted, Kevin Bollaert, was indicted for extortion, conspiracy,
and identity theft.
102
The site featured the nude photos, Facebook
screen shots, and contact information of more than 10,000
individuals.
103
According to the indictment, Bollaert ran the
revenge porn site with a companion takedown site, Change My
Reputation.
104
When Bollaert received complaints from individuals
who appeared in nude photos, he allegedly sent them e-mails
directing them to the takedown site, which charged up to $350 for
the removal of photos.
105
Attorney General Harris explained that
Bollaert “published intimate photos of unsuspecting victims and
turned their public humiliation and betrayal into a commodity with
the potential to devastate lives.”
106
Bollaert will surely challenge the state’s criminal law charges
on § 230 grounds. His strongest argument is that charging for the
removal of user-generated photos is not tantamount to authoring or
co-developing them. Said another way, charging for the removal of
content is not the same as paying for or helping develop it.
107
100. Id.
101. Justin Mitchell, Law Takes Revenge on ‘Revenge Porn King,’ V
OICE OF
RUSSIA (Jan. 24, 2009, 11:49 AM), http://voiceofrussia.com/us/2014_01_24/Law-
takes-revenge-on-revenge-porn-king-2424/.
102. Lee Munson, Revenge Porn Operator Facing Charges of Conspiracy,
Extortion and Identity Theft, N
AKED SECURITY (Dec. 11, 2013),
http://nakedsecurity.sophos.com/2013/12/11/revenge-porn-operator-facing-
charges-of-conspiracy-extortion-and-identity-theft/.
103. Id.
104. Id.
105. Id.
106. Id.
107. Mary Anne Franks, The Lawless Internet? Myths and Misconceptions
About CDA Section 230, H
UFFINGTON POST (Dec. 18, 2013, 5:36 PM),
http://www.huffingtonpost.com/mary-anne-franks/section-230-the-lawless-
internet_b_4455090.html.
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Nonetheless, the state has a strong argument that the extortion
charges fall outside § 230’s immunity because the charges hinge on
what Bollaert himself did and said, not on what his users posted.
Even if the California Attorney General’s charges are dismissed
on § 230 grounds, federal prosecutors could charge Bollaert with
federal criminal extortion charges. Sites that encourage cyber
harassment and charge for its removal (or have a financial
arrangement with removal services) are engaging in extortion.
But of course revenge porn operators who charge for the
removal of images are not the only ones hosting revenge porn.
There are countless other sites and blogs that host revenge porn
that do not engage in extortion. If these criminal prosecutions are
successful, site operators will stop charging for the removal of
photos and the phenomenon will still continue.
Prosecuting site operators for violating federal cyber stalking
law is even less promising than prosecuting original disclosers.
Most site operators cannot be said to have engaged in a pattern of
harassing conduct vis-à-vis any given victim. They lack the
requisite intent to “kill, injure, harass, or place under surveillance
with intent to kill, injure, harass, or intimidate, or cause substantial
emotional distress” a particular person.
108
Many admitted
purveyors of nonconsensual pornography maintain, with some
plausibility, that their sole intention is to obtain notoriety, fulfill
some sexual desire, or increase traffic for their websites.
What about child pornography laws? While “pornography” is to
some degree regulated by federal criminal law, federal law focuses
almost exclusively on the age of the material’s subjects. Little
attention is paid to individuals’ consent (or lack thereof) to be
portrayed in such a manner. With regard to original perpetrators of
nonconsensual pornography, both state and federal child
pornography laws can be used to deter and prosecute the production
of sexually explicit material featuring underage individuals. Section
2256 of Title 18 defines child pornography as any visual depiction of
sexually explicit conduct involving a minor (someone under 18 years
of age).
109
“Visual depictions include photographs, videos, digital or
computer generated images indistinguishable from an actual minor,
and images created, adapted, or modified, but appear to depict an
identifiable, actual minor.”
110
These provisions do not apply, of
course, to victims over the age of eighteen, seriously limiting the
usefulness of these prohibitions in revenge porn cases.
One commentator contends that criminal penalties applicable to
general pornographers could apply to revenge porn site operators.
111
That is not the case. Section 2257 of Title 18 sets out recordkeeping
108. 18 U.S.C. § 2261A (2012).
109. Id. § 2256.
110. Citizen’s Guide to U.S. Federal Law on Child Pornography, U.S.
DEP’T
JUSTICE,
http://www.justice.gov/criminal/ceos/citizensguide/citizensguide_porn.html (last
visited Feb. 9, 2014).
111. Jeong, supra note 51.
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requirements for those engaged in “producing” pornography.
112
The
statute’s definition of “produces” or “producing” pornography tracks
the definition of § 230 of the Communications Decency Act, which
means it does not cover websites that facilitate or distribute
material submitted by third-party users.
113
The statute also focuses
almost exclusively on age-verifying identification.
114
It sets out no
requirements to verify that the individuals portrayed have
consented to the use of their images. While this law may provide
some disincentives for distributing nonconsensual pornography of
underage individuals, it will not have any effect on the distribution
of material featuring adult victims.
C. Current Efforts to Criminalize Nonconsensual Pornography
To date, New Jersey, Alaska, Texas, and California are the only
states that criminalize the nonconsensual disclosure of someone’s
sexually intimate images.
115
During the writing of this Article,
legislators in seventeen states have proposed revenge porn bills.
116
We provide our thoughts on these developments, noting the
strengths and weaknesses of the various approaches and offering
suggestions of our own. We reserve our views on the
constitutionality of these proposals for the next Part.
New Jersey, the first state to criminalize revenge porn, has the
broadest statute, prohibiting the nonconsensual observation,
recording, or disclosure of sexually explicit images. Under New
Jersey law, it is a third-degree crime
117
to post or share a person’s
nude or partially nude images without that person’s consent.
118
The
New Jersey law provides the following:
An actor commits a crime of the third degree if, knowing that
he is not licensed or privileged to do so, he discloses any
photograph, film, videotape, recording or any other
reproduction of the image of another person whose intimate
112. See 18 U.S.C. § 2257(b) (2012) (providing record keeping requirements
for those who produce “sexually explicit conduct”).
113. See id. § 2257(h)(2) (defining the term “produces”).
114. See id. § 2257(b).
115. N.J. STAT. ANN. § 2C:14-9 (West 2005) (taking effect on Jan. 8, 2004);
S.B. 255, 2013-2014 Reg. Sess. (Cal. 2013).
116. Franks has been advising legislators all across the country, from New
York and Wisconsin to Florida and Illinois to name just a few. Franks is also
working with Congresswoman Jackie Speiers in drafting a federal revenge porn
bill. Franks and Citron worked with Maryland delegate Jon Cardin in crafting
his revenge porn bill. Legislators in Florida attempted to pass a much less clear
and much less comprehensive bill in their most recent term, but the measure
died in committee. The bill’s original sponsors have declared that they will
attempt to introduce the bill again in their next session and have been working
with Franks on revisions. Rick Stone, In Florida, ‘Revenge Porn’ Is a Moving
Target, WLRN (Dec. 4, 2013, 7:56 AM), http://wlrn.org/post/florida-revenge-
porn-moving-target.
117. New Jersey does not use the classifications of “felony” and
“misdemeanor.” See N.J.
STAT. ANN. § 2C:52-2 (West 2005).
118. Id.
§ 2C:14-9.
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parts are exposed or who is engaged in an act of sexual
penetration or sexual contact, unless that person has
consented to such disclosure. For purposes of this subsection,
“disclose” means sell, manufacture, give, provide, lend, trade,
mail, deliver, transfer, publish, distribute, circulate,
disseminate, present, exhibit, advertise or offer.
119
The crime carries a prison sentence ranging from three to five
years.
120
Although the law has been around for almost a decade, it has
been invoked in only a few cases.
121
In a recent case, the defendant
and victim exchanged “unclothed” photos of each other while
dating.
122
After their break up, the defendant threatened to send
the victim’s nude pictures to her employer, a public school. The
defendant followed up on his threat, forwarding the pictures to the
school stating “you have an educator there that is . . . not proper.”
123
The defendant admitted to sending the pictures. The defendant was
convicted for disclosing naked images given with the understanding
that they would not be shared with others.
124
In 2010, Rutgers University student Dahrun Ravi was charged
under the New Jersey statute after he secretly filmed his roommate
Tyler Clementi having sex with a man and watched the live feed
with six friends.
125
Clementi committed suicide after discovering
what had happened.
126
The jury convicted Ravi of various counts of
invasion of privacy, including the nonconsensual “observation” of
Clementi having sex and the nonconsensual “disclosure” of the sex
video.
127
On January 8, 2014, Maryland legislator Jon Cardin proposed a
revenge porn bill that resembled the New Jersey approach.
128
The
proposed bill bars the disclosure of a person’s sexually explicit or
119. Id. § 2C:14-9(c).
120. Id.
§ 2C:43-6.
121. In 2012, Brandon Carangelo was charged under the New Jersey statute
for uploading pictures of his ex-girlfriend without her consent. Michaelangelo
Conte, Bayonne Man Charged with Posting Nude Photos of Ex-Girlfriend on
Internet, NJ.COM (Oct. 23, 2012, 5:59 PM),
122. State v. Parsons, No. 10-06-01372, 2011 WL 6089210, at *1 (N.J. Super.
Ct. App. Div. Dec. 8, 2011).
123. Id.
124. Id. at *1–3.
125. Star-Ledger Staff, Dharun Ravi Sentenced to Jail in Tyler Clementi
Webcam Spying Case,
NJ (May 21, 2012, 9:57 PM),
http://www.nj.com/news/index.ssf/2012/05/dharun_ravi_sentenced_to_jail.html.
126. Id.
127. Id.
128. See H.B. 64, 2014 Leg., 435th Sess. (Md. 2014).
(“For the purpose of prohibiting a person from intentionally disclosing
a certain sexually explicit image of a certain other person, knowing
that the other person has not consented to the disclosure; providing
penalties for a violation of this Act; providing for the scope of this Act;
providing that this Act does not affect any legal or equitable right or
remedy otherwise provided by law; defining certain terms; and
generally relating to the intentional disclosure of sexually explicit
images.”)
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nude images “knowing that the other person has not consented to
the disclosure.”
129
The proposed bill included various exemptions,
such as the exclusion of images related to matters of public interest.
It reads:
This section does not apply to:
(1) a law enforcement official in connection with a
criminal prosecution;
(2) a person acting in compliance with a subpoena or court
order for use in a legal proceeding;
(3) a person acting with a bona fide and lawful scientific,
educational, governmental, news, or other similar public
purpose; or
(4) a voluntary exposure in a public or commercial
setting.
130
The proposed Maryland bill treats nonconsensual pornography as a
felony with up to five years of jail time and a significant fine.
Wisconsin has proposed a similar bill.
131
A revenge porn bill proposed by New York lawmakers is
narrower than New Jersey or Maryland’s approach. It covers
sexually explicit photographs captured consensually as part of an
intimate relationship, with the expectation of privacy, and later
disclosed to the public without the consent of the individual
depicted.
132
Much like the Maryland proposal, the New York
proposal includes exceptions for law enforcement, legal proceedings,
and voluntary exposures made in public.
California’s newly adopted revenge porn bill has the narrowest
coverage of all. Adopted in October 1, 2013, the California law
provides that a party is guilty of disorderly conduct if
[a]ny person who photographs or records by any means the
image of the intimate body part or parts of another identifiable
person, under circumstances where the parties agree or
understand that the image shall remain private, and the
person subsequently distributes the image taken, with the
intent to cause serious emotional distress, and the depicted
person suffers serious emotional distress.
133
129. Id. “‘Intimate parts’ means the naked genitals, pubic area, or buttocks
of a person or the naked nipple of a female adult person.” “‘Sexual act’ has the
meaning stated in § 3-301 of this title.” “‘Sexual conduct’ has the meaning
stated in § 3-301 of this title.” “‘Image’ includes a photograph, a film, a
videotape, a recording, or a digital or other reproduction.” Id.
130. Id.
131. A.B. 462, 2013–2014 Leg. (Wis. 2013).
132. Several different bills on this issue have been proposed in New York.
One of the authors, Franks, worked on the version sponsored by Assemblyman
Braunstein and Senator Griffo, which is the bill discussed here. A.O. 8214,
2013–2014 Reg. Sess. (N.Y. 2013).
133. C
AL. PENAL CODE § 647 (West 2013).
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The California bill requires that the defendant intend to cause the
victim serious emotional distress, a requirement that is absent from
the New Jersey bill and other proposals. It also demands that the
state prove that victims have suffered serious emotional distress.
Its penalty is the weakest, comparatively speaking. Unlike the New
Jersey bill and other proposed bills that classify nonconsensual
pornography as a felony, it is a misdemeanour in California
punishable by up to six months in prison and a $1,000 fine (up to
one year in prison and a $2,000 fine for second offense).
134
IV. THE FIRST AMENDMENT CHALLENGES
What of First Amendment objections to revenge porn
legislation? Would its criminalization transgress First Amendment
doctrine and free speech values? Is nonconsensual pornography
“offensive” speech that must be tolerated or instead within the
narrow band of private communications that can be proscribed
within the boundaries of the First Amendment? As we argue in this
Part, it is the latter.
A “bedrock principle underlying the First Amendment . . . is
that the government may not [censor] the expression of an idea
simply because society finds the idea itself offensive” or
distasteful.
135
Ordinarily, government regulation of the content of
speech—what speech is about—is permissible only in a narrow set of
circumstances. Content regulations have to serve a compelling
interest that cannot be promoted through less restrictive means.
Strict scrutiny review, as it is called, is difficult to satisfy because
we distrust the government to pick winners and losers in the realm
of ideas. Courts err on the side of caution before regulating speech
because free expression is crucial to our ability to govern ourselves,
to discover the truth, and to express ourselves, among other values.
As the Supreme Court famously declared in New York Times Co. v.
Sullivan,
136
our society has a “profound national commitment to the
principle that debate on public issues should be uninhibited, robust,
and wide-open.”
137
Hateful and deeply offensive words thus enjoy
presumptive constitutional protection.
138
Nonetheless, First Amendment doctrine holds that not all forms
of speech regulation are subject to strict scrutiny. Certain
categories of speech can be regulated due to their propensity to bring
134. CAL. PENAL CODE §§ 19, 19.2 (Deering 2008). Franks has been working
with legislative drafters in California to amend the law to provide more
protection for victims and to include explicit exceptions for conduct protected by
the First Amendment.
135. Texas v. Johnson, 491 U.S. 397, 414 (1989).
136. 376 U.S. 254 (1964).
137. Id. at 270.
138. In Cohen v. California, 403 U.S. 15 (1971), the Supreme Court
concluded that the defendant engaged in constitutionally protected speech when
he wore a jacket into a courtroom with “Fuck the Draft” written on its back. Id.
at 16. The Court explained that a governmental interest in regulating offensive
speech could not outweigh the defendant’s First Amendment right to freedom of
speech. Id. at 26.
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about serious harms and only slight contributions to First
Amendment values. They include true threats, speech integral to
criminal conduct, defamation, obscenity, and imminent and likely
incitement of violence.
139
Courts also have employed “less rigorous”
scrutiny in upholding the constitutionality of penalties for
nonconsensual disclosures of private communications, such as sex
tapes, on the ground that such communications are not matters of
public concern.
140
A narrowly crafted revenge porn criminal statute that protects
the privacy of sexually explicit images can be reconciled with the
First Amendment. For support, we can look to the Court’s decisions
assessing the constitutionality of civil penalties under the federal
Wiretap Act and lower court decisions on the public disclosure of
private fact tort. We can rely on those decisions because the Court
has generally held that the First Amendment rules applicable to
criminal law are the same as those applicable to tort law.
141
A. Wiretap Decisions
Let us first explore judicial decisions assessing the
constitutionality of penalties for the nonconsensual disclosure of
139. See N.Y. Times Co., 376 U.S. at 269. The Court has articulated complex
constitutional standards for some of these categories like defamation, erecting a
matrix of fault and damage rules based on whether a plaintiff is a public or
private figure. Gertz v. Robert Welch, Inc., 418 U.S. 323, 346–49 (1974). As
free speech scholar Rodney Smolla puts it, the well-defined categories of speech
falling outside the First Amendment’s coverage entail elaborate standards of
review, and some constitutional protection is indeed afforded to certain types of
libelous and obscene speech. Rodney A. Smolla, Categories, Tiers of Review, and
the Roiling Sea of Free Speech Doctrine and Principle: A Methodological
Critique of United States v. Alvarez, 76 A
LB. L. REV. 499, 501–02 (2013).
140. See, e.g., Michaels v. Internet Entm’t Grp., 5 F. Supp. 2d 823 (C.D. Cal.
1998). In assessing the constitutionality of certain categories of speech, the
Supreme Court has distinguished speech involvjng matters of public interest
and speech involving purely private matters. See, e.g., Snyder v. Phelps, 131 S.
Ct. 1207, 1216 (2011) (finding that the constitutionality of intentional infliction
of emotional distress claims depended on whether the emotionally distressing
speech involved matters “of interest to society at large” as determined by its
content, form, and context); City of San Diego v. Roe, 543 U.S. 77, 84 (2004)
(finding that sexually explicit images were not of legitimate news interest in
that they did not inform the public about any aspect of his employer’s
functioning and thus government could fire employee without running afoul of
the First Amendment); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472
U.S. 749, 762 (1985) (upholding defamation claim because it involved purely
private matter of a business’ credit report that was not subject to actual malice
standard required for “debate on public issues”); Time v. Hill, 385 U.S. 374
(1967) (on matters of “legitimate public concern” defamation claims require
proof of actual malice); N.Y. Times Co., 376 U.S. at 277 (explaining that in a
defamation suit involving public official, free speech on “matters of public
concern should be uninhibited, robust, and wide open”).
141. N.Y. Times Co., 376 U.S. at 277. Indeed, as the Court noted in New
York Times, criminal actions provide even greater protection to defendants than
do civil cases because they require proof beyond reasonable doubt and other
protections afforded to criminal defendants.
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truthful, lawfully obtained information initially acquired illegally.
142
The Court has held that “state action to punish the publication of
truthful information seldom can satisfy constitutional standards.”
143
In assessing a newspaper’s criminal conviction for publishing a
juvenile defendant’s name in a murder case, the Court, in the 1979
decision in Smith v. Daily Mail,
144
laid down the now well-
established rule that “if a newspaper lawfully obtains truthful
information about a matter of public significance then state officials
may not constitutionally punish publication of the information,
absent a need to further a state interest of the highest order.”
145
Since then, the Court has consistently refused to adopt a bright-line
rule that truthful publications can never be subjected to civil or
criminal liability for “invading ‘an area of privacy’ defined by the
State.”
146
To the contrary, the Court has repeatedly noted that press
freedom and privacy rights are both “‘plainly rooted in the traditions
and significant concerns of the society’.”
147
In Bartnicki v. Vopper,
148
for instance, an unidentified person
intercepted and recorded a cell phone call between the president of a
local teacher’s union and the union’s chief negotiator.
149
The
conversation concerned the negotiations between the union and the
school board. During the call, one of the parties mentioned, “go[ing]
to . . . [the] homes” of school board members to “blow off their front
porches.”
150
A radio commentator, who received a copy of the
intercepted call in his mailbox, broadcasted it on his talk show. The
question was whether the radio commentator could be penalized
under the Wiretap Act for publishing the recorded cell phone
conversation.
As the Court explained, the case presented a “conflict between
interests of the highest order—on the one hand, the interest in the
full and free dissemination of information concerning public issues,
and, on the other hand, the interest in individual privacy and, more
specifically, in fostering private speech.”
151
The Court underscored
that the “fear of public disclosure of private conversations might
well have a chilling effect on private speech.”
152
For the Court, there
were free speech interests “on both sides of the constitutional
calculus.”
153
The Court distinguished the free speech interests in
142. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 517 (2001); Smith v. Daily
Mail Pub. Co., 443 U.S. 97, 98 (1979).
143. Smith, 443 U.S. at 102; see also Fla. Star v. B.J.F., 491 U.S. 524, 540–
41 (1989) (discussing the high requirements such state action would have to
meet).
144. Smith, 443 U.S. at 98.
145. Id. at 103.
146. Fla. Star, 491 U.S. 524, 533 (1989).
147. Id.
148. Bartnicki v. Vopper, 532 U.S. 514, 514 (2001).
149. Id. at 518.
150. Id. at 518–19.
151. Id. at 518.
152. Id. at 533.
153. Id.
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certain types of communications. According to the Court, “some
intrusions on privacy are more offensive than others, and . . . the
disclosure of the contents of a private conversation can be an even
greater intrusion on privacy than the interception itself.”
154
The Court struck down the penalties assessed against the radio
commentator as unconstitutional because the private
communications concerned negotiations over the proper level of
compensation for teachers that were “unquestionably a matter of
public concern.”
155
As the Court underscored, Bartnicki did not
involve the nonconsensual publication of “trade secrets or domestic
gossip or other information of purely private concern.”
156
Citing
Florida Star v. B.J.F., the Court noted that, “[w]e continue to
believe that the sensitivity and significance of the interests
presented in clashes between [the] First Amendment and privacy
rights counsel relying on limited principles that sweep no more
broadly than the appropriate context of the instant case.”
157
The
Court ruled that the privacy concerns vindicated by the Wiretap Act
had to “give way” to “the interest in publishing matters of public
importance.”
158
The Court held that even though the journalist
knew the conversation had been illegally obtained in violation of the
federal Wiretap Act, the First Amendment protected its
broadcast.
159
As the Court suggested in Bartnicki, the state interest in
protecting the privacy of communications may be “strong enough to
justify the application of” the federal Wiretap Act if they involve
matters “of purely private concern.”
160
Free speech scholar Neil
Richards has argued, and we agree, that the Bartnicki rule thus has
a built-in exception: regulations regarding the nonconsensual
disclosure of private communications that are not of legitimate
concern to the public deserve a lower level of First Amendment
scrutiny.
161
Following that reasoning, courts have upheld civil
penalties under the federal Wiretap Act where the unwanted
disclosures of private communications involved “purely private
matters.”
162
154. Id.
155. Id. at 535.
156. Id. at 533.
157. Id.
158. Id. at 534.
159. Id. at 518.
160. Id. at 533.
161. Neil M. Richards, The Limits of Tort Privacy, 9 J.
ON TELECOMM. & HIGH
TECH. L. 357, 378 (2011).
162. See, e.g., Quigley v. Rosenthal, 327 F.3d 1044, 1067–68 (10th Cir. 2003)
(upholding civil penalties under the federal Wiretap Act for the disclosure of the
contents of intercepted phone calls concerning a woman’s private discussion
with friends and family regarding an ongoing dispute with a neighbor because
the intercepted call involved purely private matters).
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B. Public Disclosure of Private Fact Tort
Along similar lines, lower courts have upheld the
constitutionality of the public disclosure of private fact tort claims
where the private facts disclosed did not concern newsworthy
matters, that is, matters of legitimate public interest.
163
The
constitutionality of the privacy tort in cases involving the
nonconsensual disclosure of sex videos is well established.
164
In
Michaels v. Internet Entertainment Group, Inc.,
165
an adult
entertainment company obtained a copy of a sex video made by the
celebrity couple, Bret Michaels and Pamela Anderson Lee. The
couple sought to enjoin the defendant from publishing the tape on
the grounds that its publication would mean the commission of the
tort of public disclosure of private fact.
166
The court found for the
plaintiffs, reasoning that the public has no legitimate interest in
graphic depictions of the “most intimate aspects of” a celebrity
couple’s relationship.
167
As the court explained, “sexual relations
are among the most private of private affairs, and that a video
recording of two individuals engaged in such relations represents
the deepest possible intrusion into such affairs.”
168
These cases support the constitutionality of narrowly crafted
revenge porn laws criminalizing the publication of someone’s sexual
images in violation of their understanding that the images would be
kept private. The proposed New York bill and California statute, for
instance, protect the interest in individual privacy and in particular
the interest in fostering private sexual expression. Sexually themed
images constitute psychologically and financially harmful breaches
of social norms that satisfy the “purely private matters” exception in
the Smith line of authority.
169
As Neil Richards puts it, “[u]nwanted
publication of a sex video would seem to cause much greater injury,
and to be far less necessary to public debate.”
170
163. SOLOVE & SCHWARTZ, supra note 54. The public disclosure of private
fact tort builds First Amendment protections into the claim itself by excluding
from the tort private facts that are newsworthy. To state a claim for public
disclosure of private fact, the plaintiff has to prove that the defendant published
a private fact about the plaintiff that does not involve newsworthy matters and
whose publication would highly offend the reasonable person. Citron, supra
note 80, at 1828–29; William L. Prosser, Privacy, 48 C
ALIF. L. REV. 383, 394–96
(1960).
164. See, e.g., Michaels v. Internet Entm’t Grp., 5 F. Supp. 2d 823, 839 (C.D.
Cal. 1998); see also F
UTURE OF REPUTATION, supra note 7, at 129, 160; Daniel J.
Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against
Disclosure, 53 DUKE L.J. 967, 987–89 (2003) (arguing that the disclosure tort
can be balanced with the First Amendment where the speech addresses private
concerns).
165. Michaels, 5 F. Supp. 2d at 828.
166. Id. at 828, 839–40.
167. Id. at 840.
168. Id. at 841.
169. See Smith v. Daily Mail Pub. Co., 443 U.S. 97, 98 (1979).
170. See N
EIL M. RICHARDS, INTELLECTUAL PRIVACY: CIVIL LIBERTIES AND
INFORMATION IN A DIGITAL AGE (forthcoming 2014) (on file with author).
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The Court’s recent decision in Snyder v. Phelps
171
supports the
notion that the nonconsensual disclosure of sexual images
constitutes purely private matters deserving less First Amendment
protection.
172
Snyder concerned the Westboro Baptist Church’s
picketing of a soldier’s funeral with signs suggesting that the
soldiers’ deaths are God’s way of punishing the United States for its
tolerance of homosexuality.
173
In 2006, the Church’s pastor, Fred
Phelps, obtained police approval to protest on public land 1,000 feet
from the church where the funeral of a Marine killed in Iraq,
Matthew Snyder, would be held.
174
The protestors’ signs read, “God
Hates the USA,” “America is Doomed,” “God Hates You,” “You’re
Going to Hell,” and “Thank God for Dead Soldiers.”
175
Albert Snyder
sued Phelps and members of his church for intentional infliction of
emotional distress.
176
The jury award was in the millions.
177
The Supreme Court overruled the decision in favor of the
Westboro Baptist Church. As the Chief Justice held, Snyder’s
emotional distress claim transgressed the First Amendment because
the protest constituted speech of the highest importance—views on
public matters like “the political and moral conduct of the United
States . . . homosexuality in the military, and scandals involving the
Catholic” Church.
178
Chief Justice Roberts, writing for the majority,
explained that speech on public matters deserves rigorous protection
in order to prevent the stifling of debate essential to democratic self-
governance.
179
In contrast, the Chief Judge explained, speech about
purely private matters receives less vigorous protection because the
threat of liability would not risk chilling the “meaningful dialogue of
ideas.”
180
The majority pointed to a government employer’s
regulation of videos showing an employee engaged in sexual
activity.
181
Such regulation was constitutionally permissible because
sex videos shed no light on the employer’s operation or functionality,
but rather involved purely private matters in which the public lacked
a legitimate interest.
182
As the Court noted in revealing dicta,
171. Snyder v. Phelps, 131 S. Ct. 1207, 1213 (2011).
172. Id. at 1220.
173. Id. at 1216.
174. Id. at 1213.
175. Id.
176. Id.
177. Id. at 1214.
178. Id. at 1217. The protest’s location further convinced the majority that
the picketers wanted to engage in a public debate as they protested next to a
public street, which is traditionally used and specially protected as a forum of
public assembly and debate. Id. at 1218–20.
179. Id. at 1215–17.
180. Id. at 1215.
181. Id. at 1215–17.
182. Id.
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sexually explicit images exemplify the sort of “purely private
matters” that deserve less heightened protection.
183
Some have suggested that United States v. Stevens ended the
question of whether speech can ever be regulated if it falls outside
the categories of unprotected speech such as defamation, obscenity,
incitement, or true threats.
184
This is a misreading of Stevens. In
Stevens,
185
the Court considered the constitutionality of a statute
criminalizing the creation, sale, or depiction of animal cruelty for
commercial gain. The Court rejected the government’s argument
that animal cruelty depictions amounted to a new category of
unprotected speech.
186
As the Court explained, First Amendment
doctrine does not permit the government to prohibit speech just
because it lacks value or because the “ad hoc calculus of costs and
benefits tilts in a statute’s favor.”
187
The Court does not have
“freewheeling authority to declare new categories of speech outside
the scope of the First Amendment.”
188
The Court in Stevens,
however, recognized that some forms of speech may be historically
unprotected or entitled to less rigorous protection even though the
Court has not recognized it as such explicitly.
189
But, as the Court
explained, depictions of animal cruelty are not among them.
190
Not
so for the public disclosure of private fact tort and other long-
standing privacy regulations. As the Court held in Bartnicki and
Florida Star, laws protecting privacy are “plainly rooted in the
traditions and significant concerns of our society.”
191
Moreover, the Court in Snyder v. Phelps, decided after Stevens,
makes clear that the Court has not eliminated long-standing torts
like intentional infliction of emotional distress even though the
Court has not explicitly included it as a category of speech deserving
of less rigorous protection. Although the Court has never explicitly
held that intentional infliction of emotional distress claims amount
to a category of protected speech, the decision assumed that such
claims could be upheld as constitutional if certain conditions were
met—if the expression giving rise to the claims involved purely
private matters. In Snyder, the Court refused to strike down the
183. See id.
184. Oddly, in discussing recognized categories of unprotected speech, the
Court in Stevens included defamation, citing the group libel case Beauharnais v.
Illinois, 343 U.S. 250 (1952), for support rather than New York Times Co. v.
Sullivan, 376 U.S. 254 (1964), or later individual defamation cases. Since the
N.Y. Times Co. decision, scholars have long claimed, and we tend to agree, that
group libel claims would not survive “actual malice” scrutiny. Generally, hateful
ideas about groups concern matters of public concern, as the Court in Snyder
suggested.
185. 599 U.S. 460 (2010).
186. Id. at 472.
187. Id. at 471.
188. Id. at 472.
189. See id. at 478–80.
190. Id.
191. Fla. Star v. B.J.F., 491 U.S. 524, 533 (1989).
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tort as unconstitutional, much as the Court refused to do so in
Falwell.
With this construct in mind, when might revenge porn concern
speech on public matters deserving rigorous protection? What about
the application of revenge porn statutes to individuals publishing
the sexually explicit images of a public official without the official’s
consent?
Consider the infamous images of former Congressman Anthony
Weiner. Women revealed to the press that Congressman Weiner
had sent them sexually explicit photographs of himself via text and
Twitter messages on different occasions. Under the reasoning in
Snyder, the public arguably has a legitimate interest in learning
about the sexual indiscretions of governmental representatives. On
one occasion, Weiner sent unsolicited images of his penis to a college
student whom he did not personally know.
192
His decision to send
such messages sheds light on the soundness of his judgment. Unlike
the typical revenge porn scenario involving private individuals who
shared their naked photos or permitted trusted others to take them
on the understanding that the photos would remain confidential,
this scenario raises important questions about whether explicit
material disclosed without consent can be considered a matter of
public import or otherwise constitutionally protected.
The second set of naked images that Congressman Weiner
shared might have different First Amendment implications. In
2013, Congressman Weiner announced that he would be running in
the New York City mayoral race.
193
A woman, Sydney Leathers,
released sexually explicit images of Weiner that he had sent to her
while they were having an online affair.
194
To be sure, the fact that
Weiner sent such pictures involves a matter that the public has a
legitimate interest in learning about, given that Weiner is a public
figure who had promised that he was no longer engaging in these
types of extramarital sexual activities. But does the public have a
legitimate interest in the pictures themselves, beyond the question of
proof that the pictures were authentic?
In the first scandal, the pictures were proof of a congressman’s
nonconsensual, potentially harassing conduct vis-à-vis a stranger. In
the second scandal, Weiner shared naked photographs with a
trusted intimate. The public interest lies in the fact that he was
having an extramarital online sexual relationship while running for
public office, a fact that could have been easily demonstrated with
the numerous text messages exchanged between Weiner and
Leathers or with censored versions of the pictures in question. We
raise this issue not to come down definitely on the matter but to flag
192. See Weiner Apologizes for Lying, ‘Terrible Mistakes,’ Refuses to Resign,
CNN
POLITICS (June 7, 2011, 6:54 AM),
http://www.cnn.com/2011/POLITICS/06/06/new.york.weiner/.
193. Cyril Josh Barker, Weiner—Staying in Race, N.Y. AMSTERDAM NEWS,
July 31, 2013, at 16.
194. Id.
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the distinction between the public’s legitimate interest in knowing
about the naked pictures and in actually seeing them.
195
Another way to understand the constitutionality of revenge
porn statutes is through the lens of confidentiality law.
Confidentiality Regulations are less troubling from a First
Amendment perspective because they penalize the breach of an
assumed duty, not the emotional injury of published words. Instead
of prohibiting a certain kind of speech, confidentiality law enforces
express or implied promises and shared expectations.
196
C. Obscenity
Might the Supreme Court find that nonconsensual pornography
amounts to unprotected obscenity? Noted First Amendment scholar
Eugene Volokh argues that sexually intimate images of individuals
disclosed without consent belong to the category of “obscenity,”
which the Supreme Court has determined does not receive First
Amendment protection.
197
In his view, nonconsensual pornography
lacks First Amendment value as a historical matter and should be
understood as categorically unprotected because it is obscenity.
198
Although the Court’s obscenity doctrine has developed along
different lines with distinct justifications, nonconsensual
pornography can be seen as part of obscenity’s long tradition of
proscription.
In Miller v. California,
199
the Court set out the following
guidelines for determining whether material is obscene:
(a) whether ‘the average person, applying contemporary
community standards’ would find that the work, taken as a
whole, appeals to the prurient interest, (b) whether the work
depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law, and (c)
whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.”
200
The Supreme Court
provided two “plain examples” of “sexual conduct” that could
be regulated: “[p]atently offensive representations or
descriptions of ultimate sexual acts, normal or perverted,
actual or simulated” and “[p]atently offensive representation
195. In his forthcoming book, Neil Richards makes a similar argument. In
discussing the case of celebrities who did not consent to sex tapes being made
public, Richards argues that naming celebrities as adulterers may be one thing
but publishing high-resolution videos of their sex acts is another. As he
explains, we do not need to see celebrities naked to discuss their infidelity. See
R
ICHARDS, supra note 170, at 38.
196. Daniel J. Solove & Neil M. Richards, Rethinking Free Speech and Civil
Liability, 109 C
OLUM. L. REV. 1650, 1670 (2009).
197. Eugene Volokh, Florida “Revenge Porn” Bill, V
OLOKH CONSPIRACY (Apr.
10, 2013, 7:51 PM), http://www.volokh.com/2013/04/10/florida-revenge-porn-
bill/.
198. Id.
199. 413 U.S. 15 (1973).
200. Id. at 24 (citations omitted).
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or descriptions of masturbation, excretory functions, and lewd
exhibition of the genitals.
201
Disclosing pictures and videos that expose an individual’s
genitals or reveal an individual engaging in a sexual act without
that individual’s consent could qualify as a “patently offensive
representation” of sexual conduct. Such material offers no “serious
literary, artistic, political, or scientific value.”
202
D. Free Speech Values
Free expression allows individuals to express truths about
themselves and the world as they see it.
203
It enables citizens to
make intelligent, informed decisions about self-government.
204
As
Justice Brandeis underscored, free speech is “important not just as
an individual right, but as a safeguard for the social processes of
democracy.”
205
Being able to express ideas and to listen to the ideas
of others is instrumental to our ability to engage as citizens.
The nonconsensual disclosure of someone’s sexually explicit
images does little to advance expressive autonomy and self-
governance and does much to undermine private self-expression.
Maintaining the confidentiality of someone’s sexually explicit
images, shared under the assumption that they would be kept
private, has little impact on a poster’s expression of ideas. It
contributes little to public conversation essential for self-
government. The publication of revenge porn does not produce
better democratic citizens. It does not promote civic character or
educate us about cultural, religious, or political issues.
Instead, the nonconsensual disclosure of a person’s sexually
explicit images chills private expression based on the fear that the
images would be shared with the public at large. Without any
expectation of privacy and confidentiality, victims would not share
their naked images. Such sharing may in fact enhance intimacy
among couples and their willingness to be forthright in other aspects
of their relationship. Laws restricting disclosure of private
information serve important speech-enhancing functions. In his
concurrence in Bartnicki, Justice Breyer noted that while
nondisclosure laws place “direct restrictions on speech, the Federal
Constitution must tolerate laws of this kind because of the
201. Id. at 25.
202. Id. at 24. Volokh has written that:
[A] suitably clear and narrow statute banning nonconsensual
posting of nude pictures of another, in a context where there’s
good reason to think that the subject did not consent to
publication of such pictures, would likely be upheld by the
courts . . . . [C]ourts can rightly conclude that as a categorical
matter such nude pictures indeed lack First Amendment value.
Volokh, supra note 197.
203. Citron, Cyber Civil Rights, supra note 67, at 101 & n.286 (citing
L
AURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 785–89 (2d ed. 1988)).
204. R
ICHARDS, supra note 170, at 8–9.
205. Id.
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importance of these privacy and speech-related objectives,”
206
that
is, the interest in “fostering private speech.”
207
He continued, “the
Constitution permits legislatures to respond flexibly to the
challenges future technology may pose to the individual’s interest in
basic personal privacy . . . . [W]e should avoid adopting overly broad
or rigid constitutional rules, which would unnecessarily restrict
legislative flexibility.”
208
We agree.
V.
RECOMMENDATIONS
In this Part, we offer our recommendations to lawmakers
working to criminalize revenge porn. Our advice is informed by
First Amendment doctrine, due process concerns, and the goal of
encouraging the passage of laws that will deter revenge porn and its
grave harms. In the course of advising lawmakers working on this
issue, we have worked closely with civil liberties groups, including
the ACLU. We take their recommendations and concerns seriously.
Our recommendations are offered in that spirit.
Civil liberties groups rightly worry that if revenge porn laws
“aren’t narrowly focused enough, they can be interpreted too
broadly.”
209
Digital Media Law Project’s Jeff Hermes has expressed
concern that revenge porn laws might criminalize speech in which
the public has a legitimate interest.
Careful and precise drafting can avoid these concerns. These
drafting techniques are essential to any effort to criminalize revenge
porn.
210
Criminal laws are vulnerable to constitutional challenges if
they are vague or overbroad. Defendants must have clear notice
about the precise activity that is prohibited. Not only does
legislation have to give fair warning to potential perpetrators, it
must not be so broad as to criminalize innocuous behavior. Let us
explore key features of revenge porn bills that can help avoid these
problems.
A. Clarifying the Mens Rea
Revenge porn laws should clarify the defendant’s mental state.
They could require that the defendant knowingly betrayed the
privacy expectation of the person in the sexually explicit image.
211
If
that were required, a law could require proof that the defendant
206. Bartnicki v. Vopper, 532 U.S. 514, 537–38 (2001) (Breyer, J.,
concurring).
207. Id. at 536.
208. Id. at 541.
209. Anne Flaherty, ‘Revenge Porn’ Victims Press for New Laws, A
SSOCIATED
PRESS (Nov. 15, 2013, 12:34 PM), http://bigstory.ap.org/article/revenge-porn-
victims-press-new-laws.
210. This necessary care is not limited to revenge porn; any law that
regulates expression faces similar challenges.
211. Smith v. California, 361 U.S. 147, 152–55 (1959) (ruling in an obscenity
case that the mens rea of the crime must be “knowing” rather than mere
negligence to protect against overbreadth concerns).
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knew that the other person did not consent to the disclosure and
that the other person shared the image (or permitted the image to
be taken) on the understanding it would be kept private.
212
The New York proposed legislation and California law
seemingly incorporates this notion. Those laws only punish
intentional privacy invaders.
213
They do not apply to individuals
who foolishly share someone’s naked photos with others without
knowing they are breaching someone’s confidence. As the California
statute requires, the laws clarifying the defendant’s mental state
only apply “under circumstances where the parties agree or
understand the image shall remain private.”
214
They would not
reach people who repost nude images without knowledge or
agreement that the image be kept private.
The California bill goes too far, in our view, in requiring proof
that the defendants intended to inflict serious emotional distress.
Such proof is not necessary to capture the key gravamen of the
wrong—the disclosure of someone’s naked photographs without the
person’s consent and in violation of their expectation that the image
be kept private. As Part IV made clear, intent to cause severe
emotional distress is not essential to square the statute with the
First Amendment. What is essential is a statute’s goal of fostering
private expression, which the Court has recognized as warranting
regulation.
B. Circumstances
Lawmakers should make clear that statutes cover images taken
by the victims themselves (so-called “self-shots”) as well as images
taken by the defendants. There is no principled justification for
distinguishing between victims who share their nude photos with a
trusted individual and those who permit trusted confidants to take
their nude photos. Indeed, the justification seems to run the other
way. The Copyright Act criminalizes copyright owners of an image
but not individuals who post someone else’s copyrighted material.
All this distinction does is ensure that the bill does not cover most
victims. According to a recent study by the Cyber Civil Rights
Initiative, more than 80% of revenge porn victims belong to this
category.
215
Such a distinction will impose an additional burden on
victims to prove that they did not take the images in question.
212. That is the view of one of us (Citron). Franks would frame the mens
rea requirement differently: that a reasonable person should have known that
the person did not or would not have consented to the disclosure.
213. We borrow this phrase from Lee Rowland who generously spent time
talking to one of us (Citron) about the constitutionality of revenge porn
legislation.
214. C
AL. PENAL CODE § 247.
215. Proposed CA Bill Would Fail to Protect Up to 80% of Revenge Porn
Victims, C
YBER CIVIL RIGHTS INITIATIVE (Sept. 10, 2013), available at
http://www.cybercivilrights.org/press_releases.
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C. Proof of Harm
Revenge porn statutes might have a better chance of
withstanding overbreadth challenges if they require the state to
prove that the victims suffered harm. For instance, the California
bill requires the state prove that the victim suffered emotional
harm. Lawmakers could extend coverage to other types of serious
harms described in Part I, such as economic injuries, physical harm,
or stalking. Free speech advocates contend that revenge porn
statutes should not criminalize postings that have no impact on
victims. That argument certainly should be considered as
lawmakers work on revenge porn bills.
216
D. Clear Exemptions
Revenge porn bills should include exemptions that guard
against the criminalization of disclosures concerning matters of
public interest, such as the Maryland, New York, and Wisconsin
bills do. They should make clear that it is a crime to distribute
someone’s sexually explicit images if and only if those images do not
concern matters of public importance. Worded that way, a law
would not apply, for example, to the woman who published former
Congressman and mayoral candidate Anthony Weiner’s crotch
shots. Such an exception would help reflect the state of First
Amendment doctrine; it would not alleviate overbreadth problems.
E. Specific Definitions
Revenge porn statutes must provide clear and specific
definitions of certain key terms. For instance, legislators have
provided specific and narrow definitions of “sexually explicit” and
“nude” images so that defendants have a clear understanding of the
images covered by the statutes. Maryland, New Jersey, and
California include narrow definitions of “sexually explicit” and
“nude” images.
Revenge porn bills should also clarify what lawmakers mean by
“disclosure.” Disclosure could mean showing a single other person,
such as sharing a cell phone photograph with another person or
sending a person’s nude photograph to her employer. It could,
however, have a more narrow meaning: publicity to a wide
audience.
217
We believe that a broader definition is in order since
216. On this point we may be at odds. Franks disagrees that proof of harm
should be an essential component of a revenge porn bill, as no such
similar component seems to be required by other forms of sexual
surveillance or abuse. Citron believes that such proof may be required to
overcome overbreadth concerns.
217. This distinction is something lawmakers have to think about.
The grave harms of revenge porn stem from its broad distribution, often digital,
that exacts grave economic, physical, and emotional distress because future
employers, coworkers, friends, and strangers can access them and hold it
against them. Because revenge porn’s harms flow from its wide availability to
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nonconsensual pornography can have devastating impact if shown to
one other person. Victims have lost their jobs after perpetrators e-
mailed their nude photos to their employers. They experience great
shame knowing that an employer or client has seen their nude photo
without their consent. The harms of revenge porn can be as powerful
if seen by one person as by hundreds.
F. Penalty
The ideal penalty for nonconsensual pornography is another
contested issue. If the conduct is categorized as a mere
misdemeanor, it risks sending the message that the harm caused to
victims is not that severe. Such categorization also decreases
incentives for law enforcement to dedicate the resources necessary
to adequately investigate such conduct. At the same time, criminal
laws that are more punitive will face stricter examination and
possible public resistance. Although California’s categorization of
revenge porn as a misdemeanor sends a weak message to would-be
perpetrators and will be a less effective deterrent than a law like
New Jersey’s,
218
it may have aided the law’s passage.
To date, no federal lawmaker has proposed a revenge porn
statute.
219
We support the federal criminal prohibition of
nonconsensual pornography because it would reach online acts that
are not covered by state law.
220
Congress could amend the federal
cyber stalking statute, § 2261A, with the features we suggested
above in mind.
221
Such a law would not weaken § 230 protections by exposing
search engines, Internet Service Providers (“ISPs”), and most
content hosts to potential liability. A law drafted as we suggest
would not involve any alteration of § 230, nor would it target most
online platforms. It would only prohibit the disclosure of someone’s
sexually explicit images if the defendant had the requisite mens rea.
The law is, in this and other respects, in harmony with the goals of §
230, which distinguishes between interactive computer services and
information content providers. It is true that Internet
intermediaries would not be able to raise a § 230 defense in the
unlikely event of prosecution, but this would not mean that they
could not raise any other, more relevant defenses.
employers, coworkers, and friends through online searches, criminal law should
only prohibit disclosures that are available to a wide audience.
218. The ACLU initially objected to the California bill and then withdrew its
opposition on the grounds that the statute was sufficiently narrow to comport
with the First Amendment.
219. We remain hopeful about such possibility. One of us (Franks) has been
contacted by federal lawmakers to assist in the drafting of federal legislation.
220. The U.S. Constitution permits federal lawmakers to regulate the
instrumentalities of interstate commerce, including the Internet.
221. See Mary Anne Franks, Why We Need a Federal Criminal Law
Response to Revenge Porn, C
ONCURRING OPINIONS (Feb. 15, 2013),
http://www.concurringopinions.com/archives/2013/02/why-we-need-a-federal-
criminal-law-response-to-revenge-porn.html.
CRIMINALIZING REVENGE PORN APRIL 1.DOCX (DO NOT DELETE) 4/21/2014 3:21 PM
201x] DESKTOP PUBLISHING EXAMPLE 140
If nonconsensual pornography were to become a federal crime, it
would be one of thousands of existing federal crimes for which no
Internet entity can raise a § 230 defense. Search engines and ISPs
have had to work around federal criminal law for many years now,
and this fact has not resulted in anything approaching the “death of
the Internet” or of the free exchange of ideas.
Federal criminalization of certain forms of online content, far
from becoming a burden for search engines, ISPs, and other entities
providing interactive computer services, can actually lead to
important and voluntary innovations by signaling the seriousness of
the damage caused to victims. Google and Microsoft’s recent efforts
with regard to child pornography are an admirable case in point.
222
CONCLUSION
We write this Article at a time of great possibility for the
criminalization of nonconsensual pornography. On October 12,
2013, the New York Times editorial board endorsed our efforts as
Board Members of the Cyber Civil Rights Initiative in helping
legislators craft criminal prohibitions of revenge porn.
223
As the
editorial board urged, “[a]lthough lawmakers can’t do much to help
their constituents with these difficulties, they can work to provide
recourse for when exes seek revenge through un-consensual
pornography.”
224
States should craft narrow statutes that prohibit
the publication of nonconsensual pornography. Such efforts are
indispensable for victims whose lives are upended by images they
shared or permitted to be taken on the understanding that they
would remain confidential. No one should be able to turn others into
objects of pornography without their consent. Doing so ought to be a
criminal act. In this Article, we have laid out why this is the case,
offered our assessment of recent legislative proposals, and addressed
First Amendment concerns. We hope, in time, to see lawmakers
follow our advice and ensure the protection of victims.
222. Alanna Petroff, Google, Microsoft Move to Block Child Porn,
CNNM
ONEY (Nov. 18, 2013, 9:10 AM),
http://money.cnn.com/2013/11/18/technology/google-microsoft-child-porn/.
223. Editorial, Fighting Back Against Revenge Porn, N.Y. TIMES, Oct. 13,
2013, at SR10.
224. Id.
