Saturday, December 16, 2017
Opinion

Column: Why do we tolerate revenge porn?

Revenge porn is a scourge. It's the term for posting sexual photos of people without their consent (often women, often exes). If you're tempted to wave this off as the kind of ephemeral cyber-harm that drifts away on its own, don't.

In her forthcoming book Hate 3.0, University of Maryland law professor Danielle Citron tells the story of a Florida graduate student who found herself the subject of revenge porn — nude photos and a sexual video. A profile including the images, as well as her name and email address, appeared on a website for soliciting sex from strangers, and then someone emailed the photos to her boss and her co-workers.

Search for her name on Google, and the first 10 pages to come up were entry after entry of the images and humiliating captions. The woman ended up changing her name to Holly Jacobs: She felt she had no choice because she "wanted a professional future," she told Citron.

Jacobs founded the website End Revenge Porn, and she also tried to fight back by going to the local police, the FBI and by contacting the sites that hosted the nude photos and the video. None of it worked. There was nothing law enforcement could do, she was told. And because the site operators had no legal responsibility to take the revenge porn down, trying to get the images deleted turned into "a nightmare game of whack-a-mole, which she kept losing," Citron writes.

This can't be right — revenge porn cannot be allowed to be a harm without a remedy.

That's why there's been a wave of attention for a California bill that aims to address it. But that bill only goes halfway. It makes it a misdemeanor offense to post revenge porn only if a prosecutor shows that the poster intended to inflict emotional distress, rather than treating the act of posting a sexual photo without consent as an objectively harmful invasion of privacy. And the punishment wouldn't apply if the subject of the photo took the picture herself, which means it wouldn't help people whose exes persuaded them to hand over photos as a sign of trust.

Here's a better model bill that doesn't have the flaws of the one in California. The bill makes it a crime to "disclose" an image, video or recording involving nudity or sexual contact without the subject's consent, "under circumstances in which the person has a reasonable expectation of privacy." Consenting to the photo within a private relationship doesn't meaning consenting to public disclosure. The author, University of Miami law professor Mary Anne Franks, says that when people tell her they oppose it, they often start "waving their hands about free speech. But when you ask them how this violates the First Amendment, they can't tell you why."

That's because it really doesn't.

Franks thinks that the real objection to cracking down on revenge porn is that "we're still trivializing harm against women." Her argument resonates when you think about this question: Why can't victims sue the pants off the men who post these photos, or the sites that host them? For starters, because the federal Communications Decency Act poses all kinds of obstacles. For example, if the posters hide their identities — and most do — victims have to go through the expense and difficulty of getting a court order to unmask them.

Citron and Franks want to see a ban on revenge porn written into the federal law that already bars cyberstalking.

And they would also like to "shut down the channels of distribution," as Franks puts it. This would mean making it easier to go after the sites that devote themselves to hosting revenge porn — and make lots of money in the process. They're protected by the courts' interpretation of Section 230 of the Communications Decency Act, which has been read to give a free pass to sites and Internet service providers that knowingly host content, posted by a user, that's defamatory or illegally invades someone's privacy.

This part of the CDA is often lauded for letting a thousand free-speech blossoms bloom online. Censorship would break the Internet! In fact, the CDA allows for big exceptions to its anything-goes rule. If you host content that violates federal law, like child pornography or identity theft, you have to take it down once you're on notice. Why not shield the victims of revenge porn in the same way? "We," Franks says, "just don't care about this harm as much."

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law. She is the author of "Sticks and Stones."

© 2013 Slate

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