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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