"Today it's possible to ruin someone's life with the click of a button, by publishing another person's private images without their consent," Rep. Speier told me. "Our laws haven't yet caught up with this crime."
More Reading: Yes We Need to Study the Effects of Revenge Porn on Mental Health
The bill, set to be introduced this spring, would make revenge porn a federal crime. It's designed to create new criminal statutes that not only apply to the people who run revenge porn sites but also criminal liability to the individuals who upload and share the content, which is where things get controversial: Even sites that host links to the content, like Facebook and Google, could face criminal penalties for enabling distribution if they've been notified of the links and don't take down the links in a timely manner. Those penalties will be determined on a sliding scale of sleaziness. While there will be no minimum penalty, for revenge porn bill will set a maximum penalty for revenge porn offenses that will include jail time.
The hurdles on Capitol Hill
Of course, Speier's revenge porn bill is not yet a law, and while it's hard to imagine who would condone the practice of publishing naked photos of someone out of spite—often with personally identifiable information about the victim—a law banning revenge porn stands to be controversial on Capitol Hill. Long story short, it could threaten existing laws designed to protect free speech.
The American Civil Liberties Union has already challenged Arizona's law criminalizing revenge porn for violating the First Amendment. But Speier's bill goes to great lengths to be very specific about what constitutes revenge porn. It puts it in a similar category as child pornography, a type of speech basically everyone can agree is destructive.
There's still a good chance the bill will pass. There are many signs that's there's a public demand to crack down on the vile practice.
Sixteen states have already passed their own legislation banning revenge porn. In December, a California court sent a man named Noe Iniguez to jail for year after he published naked photos of his ex-girlfriend on her employer's Facebook page; he was the first to be sentenced under California's new revenge porn law. Earlier this month, 28-year-old Kevin Bollaert became the first person in the country convicted under state law for running a revenge porn website. (The sicko also ran another website that charged victims $350 to have the nude photos removed.)
Overseas, the UK just passed a law making revenge porn a crime punishable by up to two years in prison. This happened around the time that Japanese authorities arrested the first man suspected of violating the anti-revenge porn law passed last November. Meanwhile, the European Union's "right to be forgotten" law could lead to a ban on the entire continent.
Even the Federal Trade Commission has effectively banned revenge porn websites. With such precedent, it's almost surprising Congress hasn't acted sooner. But things aren't so simple on the federal level.
The lack of legislation from Capitol Hill made it difficult to prosecute so-called revenge porn kingpins like Hunter Moore, founder of the infamous site IsAnyoneUp.com. Just a few days ago, the villainous 28-year-old pleaded guilty to federal crimes related to running his revenge porn empire—but because there's no federal law prohibiting revenge porn, he faced hacking charges. Moore pleaded guilty to charges of unauthorized access to a computer, aiding and abetting unauthorized access of a computer, and identity theft.
The proposed federal revenge porn law would not only change this, it'd go a step further and put websites on the hook for any porn photos uploaded voluntarily by vindictive users. Sites like Facebook generally enjoy protection against legal claims related to content that they host, under Section 230 of the Communications Decency Act. Right now, this includes vindictive pornographic photos. But making revenge porn a federal crime would strip away this safe harbor, as Section 230 "does not apply to federal criminal law, intellectual property law, and electronic communications privacy law."
Speier's legislation would make hosting revenge porn just as illegal as hosting, say, copyrighted material or medical records. "We already punish the unauthorized disclosure of private information like medical records and financial identifiers," says the congresswoman. "Why should personal images of one's naked body, given in confidence, be any different?"
What about free speech?
Some will surely argue that placing restrictions on the kind of content you can put on the internet threatens freedom of speech. Fair. But while that argument might work for political protest. It's a lot less convincing when you're talking about sexually explicit images of a person—usually a woman—that's being shared publicly without her consent. Need a more visceral example? Consider child pornography.
Speier and her team of advisors looked at existing legislation banning child porn in order to navigate the sensitive issues of the revenge porn legislation. The bill specifies that the photos posted online must be sexually explicit, not taken in public, and distributed without written consent in order to violate the revenge porn law.
A number of provisions have been added to ensure that sites unwittingly hosting content are given a reasonable amount of time to take down the photos or links to the photos after being notified by the authorities. (Reddit actually just issued its own specific ban.) The penalties for not doing so vary based on the circumstances. Basically, websites will be notified when links to revenge porn are found on their sites, and if they don't take them down in a timely manner, they'll face a penalty. The legislation is designed to create tiers of involvement in the crime in order to provide safe harbor for sites that are unaware of the offending content—think Facebook—while also maintaining some legal recourse for sites that simply refuse to take down links—think 4chan.
In the end, this federal revenge porn legislation is designed to help the most helpless victims. As Speier herself put it, " If you're Jennifer Lawrence, you can pay a high-priced lawyer to demand that websites take your picture down, but for an average person, the current system offers almost no recourse." The patchwork of state laws banning revenge porn are helpful, of course. But only if you live in those states.
In other words, this isn't just about nude photos. Mary Anne Franks, a law professor at the University of Miami who advised Speier on her new legislation explains that a federal law is necessary to combat revenge porn in order to acknowledge that America condemns such offenses.
"We have federal criminal laws against computer hacking, identity theft, and many other breaches of privacy because we recognize the severe and in many cases irremediable harm to society at large that such conduct causes," says Franks, who is also the Legislative & Tech Policy Director of the Cyber Civil Rights Initiative. "The same should be true for the violation of sexual privacy."Inevitably, explained Franks, it's about how we treat women. It's worth quoting her at length here:
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