Nov 25, 2013

Posted in Uncategorized

Federal “Revenge Porn” Legislation in the Works

U.S. News reports that legislation in Congress is in the works that would criminalize “revenge porn.”

Activists seeking to criminalize “revenge porn” say they are working with a member of Congress to prepare federal legislation that would force Internet companies to take down the sometimes X-rated content.

The proposed law has not be finalized and its sponsor does not wish to be identified yet, according to University of Miami law professor Mary Anne Franks, who is helping draft the bill.

“We’re going back and forth and actually writing the law with them,” said Franks, a board member of the Cyber Civil Rights Initiative, which was founded by “revenge porn” victim Holly Jacobs.

“Revenge porn” includes images and videos posted online by former significant others and features such items as nude photos, salacious emails and lewd texts. The content is often posted on niche websites, sometimes with the victim’s personal information, including their name, workplace and contact information.

The forthcoming bill would make posting such material without the subject’s consent a federal crime punishable by up to 2 years in prison and/or a fine.

Passing federal legislation would obviate any concerns about section 230 immunity.

“A lot of companies are under the impression they can’t be touched by state criminal laws,” Franks said, because “Section 230 trumps any state criminal law.”

The Communications Decency Act, however, doesn’t trump federal criminal law, she said, pointing to child pornography.

“The impact [of a federal law] for victims would be immediate,” Franks said. “If it became a federal criminal law that you can’t engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations.”

“Hopefully,” she said, “we would develop a similar take-down notice regime that we see in a copyright context, which means that anytime a victim becomes aware that [their] picture is on one of these websites without their consent, [they] can notify the website, [they] can notify Google, [they] could notify all the people inadvertently helping the image get shown… that this is nonconsensual material and needs to be taken down.”

The article notes opposition from EFF:

“Going after intermediaries is a really bad idea,” says Matt Zimmerman, a senior staff attorney at the Electronic Frontier Foundation. “The entire speech ecosystem ends up suffering because those service providers [would] decide what people can and cannot post, even if it isn’t illegal.”

Zimmerman says EFF doesn’t have any sympathy for posters of the offensive content, but considers criminal law a “dangerous” way to pursue culprits.

“Frequently, almost inevitably, statutes that try to do this type of thing overreach,” he says. “The concern is that they’re going to shrink the universe of speech that’s available online.”

Behaving in their best corporate interests, Zimmerman says, Internet companies would likely respond to such a law by removing content any time there’s a complaint, to reduce their liability and to save time.

I have not written about the revenge porn law, but I have been following them closely, and will write something about it soon. I have been struck that the professoriate has been largely silent about identifying constitutional deficiencies in these new laws. Most of the opposition has come in comment threads to blog posts. I have seen some analyses from Mark Bennett and others, arguing against the constitutionality of these laws. I’m still working on my position, though I may need to do this quicker than I thought. The article is tentatively titled, “Digital Due Process.”

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  • Mark W. Bennett

    I have also found the silence of the professoriate striking, and I look forward to reading your position.

    • http://joshblackman.com/ Josh Blackman

      Thank you for your work on this topic, Mark.

  • Danielle Citron

    Josh, Kate Crawford and Jason Schultze have a terrific new piece out entitled Digital Due Process, which capitalizes on my work in Technological Due Process to explore privacy implications of automated decision making. It is a superb article. Just letting you know about the title; look forward your work on revenge porn. On the revenge porn point, Eugene Volokh and Neil Richards have commented on the criminalization of revenge porn.

    • http://joshblackman.com/ Josh Blackman

      Hi Danielle,

      Thanks for the note.

      I found the Crawford/Schultze article, titled “Big Data and Due Process,” and speaks to “right to procedural data due process” (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2325784). Similar title, and looks like a great read.

      There is another group proposing reforms to surveillance techniques called “Digital Due Process” (http://digitaldueprocess.org/index.cfm?objectid=37940370-2551-11DF-8E02000C296BA163) but it is different from what I am thinking of.

      Eugene Volokh (by my count) last blogged about revenge porn in April 2013 (http://www.volokh.com/2013/04/10/florida-revenge-porn-bill/). His endorsement of the law was with some reservations.

      I don’t know that he has weighed in on recent developments (http://www.volokh.com/?s=%22revenge+porn%22&submit=).

      Neal Richards also seems to think that these laws are constitutional. http://www.law360.com/articles/479052/1st-amendment-poses-hurdle-for-ny-revenge-porn-bills

      My comment above referred to the lack of any professors arguing that these laws are unconstitutional.

      Best wishes,

      Josh

      • Danielle Citron

        Ah, an earlier title was Digital Due Process, now changed I see. Yes, I am a member of DDP–to what extent does our work on ECPA inform your thinking on criminalizing revenge porn?
        Having had long conversations with my friends at the ACLU, there are important arguments about proposed criminal statutes but they largely center on overbreadth and vagueness. I address those concerns in a recent piece I wrote for Slate. Given that courts have upheld public disclosure of private fact tort in cases involving the online distribution of someone’s sex videos without their consent and given that the Supreme Court has largely treated First Amendment rules for tort the same as for criminal law, the silence does not seem all that surprising. The key arguments are in overbreadth and vagueness, which cannot be addressed by exceptions for matters of public interest. That is where I am focusing my energies when I talk to legislators and in my book.

  • Mary Anne Franks

    Thank you for discussing this topic on your site, Prof. Blackman. I look forward to reading your thoughts, and the thoughts of other professors (and non-professors too). I do want to point out that neither the EFF nor the ACLU has expressed opposition to any specific law that I have personally drafted. I have sent my draft statutes to members of both organizations and am awaiting their responses.

    It is unfortunate that neither of the two anti-criminalization articles that have received attention so far (the Wired piece you link to and Cathy Reisenwitz’s piece at TPM) addressed the specific laws that I have helped draft (Mark Bennett, whom you also mention, did engage with my model state statute, and you can see my responses to his critique in the comments section at this Concurring Opinions post about my work: http://www.concurringopinions.com/archives/2013/10/legal-developments-in-revenge-porn-an-interview-with-mary-anne-franks.html). This is not a particularly useful discussion to have in the abstract, so I appreciate efforts to engage with specifics.

    • http://joshblackman.com/ Josh Blackman

      Thank you for the note. I will be working on this over winter break, and hope to have something to share in the new year.

    • Mark W. Bennett

      Ms. Franks, your claim that you responded to my critique of your rationalization of your proposed statute is untrue, given that when I pointed out in comments on Concurring Opinions that you hadn’t responded to it, you replied, “I do not have endless amounts of time to read everything that people write about me or my ideas.”
      I am just a simple small-town lawyer, lacking in the elaborate manners of the academy, so I hope that Josh will forgive me for any lapse in decorum. You know what we lawyers call someone who claims to have done things that she knows she didn’t do? “A liar.”

      • Mary Anne Franks

        Mr. Bennett, I am truly sorry that you and I disagree about just how much attention your criticism of my work deserves. I did in fact respond to the points you raised on Concurring Opinions (http://www.concurringopinions.com/archives/2013/10/legal-developments-in-revenge-porn-an-interview-with-mary-anne-franks.html ), something I had no obligation to do. But as I tried to explain to you there, I don’t have the time or inclination to respond in detail to every blogger who doesn’t like what I do. I’m working with over a dozen states and a federal legislator on this issue, as well as engaging in frequent conversations with victims, industry leaders, the media, free speech advocates, and other academics – all of which I do in addition to my actual job (no doubt you will take this as an opportunity to once again express your contempt for the legal teaching profession, but so be it). I am sorry to learn just how upset it makes you that your demands for more attention from me have largely gone unnoticed, but I am sure that you will find more than enough attention among your own peers and followers to make up for it.

        As to your claim that I am a liar, as well as your rather disingenuous acknowledgment of your repeated “lapses in decorum,” you may find this post enlightening: http://maryannefranks.com/post/68378495255/how-i-stopped-worrying-and-learned-to-love-the-outrage .

    • Brian Drake

      Ms. Franks, you say “that neither the EFF nor the ACLU has expressed opposition to any specific law that I have personally drafted.” So what? Suppose I authored a model statute to impose criminal penalties on law professors who attempt to draft unconstitutional laws. I send copies of my model statute to law professors, and I get no responses. Should I take the silence as tacit approval?

      • Mary Anne Franks

        Mr. Drake, I’m not sure what you find so confusing about the quoted sentence. I did not say that the EFF or the ACLU approves (tacitly or otherwise) of my proposals. I pointed out that to the extent either organization has expressed caution or objection to laws against non-consensual pornography, they have not done so with regard to my specific proposals. It seems relevant to the conversation to clarify that neither the EFF nor the ACLU has objected to my particular proposals, given the fact that they are freely accessible and form the basis of laws pending in several state legislatures as well as for potential federal criminal legislation. That is not to say they will not express disapproval in the future; indeed, my conversations with the EFF so far indicate that there may be important points on which we disagree. In other words, Mr. Drake, the sentence means exactly what it says.

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