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    Why Isn't Revenge Porn Illegal Everywhere?

    Written by

    Derek Mead

    Editor-In-Chief

    Photo via AJ Batac/Flickr

    California lawmakers are being lauded for clearing the first hurdle to a revenge porn ban in the state, which would only be the second state in the union to do so, behind New Jersey. But just two states? With cyberbullying and cyber revenge having been hot topics—and generally considered bad things—for some time now, why have so few lawmakers tried to criminalize the activity?

    The short answer is that it's a rare case of legislators taking a cautious hand towards criminalizing activity on the web. On a web filled with porn, it's tough to parse what's legal and properly used under copyright, and what's being shared after being swiped from an ex. And unlike with child porn, that vagueness makes drafting a blanket bill much more difficult.

    But not impossible. The California bill puts it this way:

    This bill would provide that any 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, is guilty of disorderly conduct and subject to that same punishment.

    The crux is simple: If your partner shares a private image with you under the assumption that it's private, and you later distributed it, you'd be guilty of disorderly conduct, a misdemeanor that can carry a fine up to $1,000. The bill, SB 255, has passed the California Senate following amendments to change the language about what constitutes the illegal act from violating "a reasonable expectation of privacy" to the current language, which only says the law's been broken if both parties agreed to keep photos private.

    The ACLU opposed the bill as initially written, as the group argued it allowed for potential punishment of people legally distributing photos that they hold the copyright to. (It is currently reviewing the amended language.) And that goes to the heart of the issue: If you take a photo of someone with their permission, you're the copyright holder and legally should be able to do with the photo what you please. 

    But when someone shares a photo with you, is later distribution illegal? It could be a breach of copyright, and that's certainly a recourse for taking someone to civil court for spreading your nude photos, but it's not strictly criminal. The California bill tries to work around that inherent issue by instead criminalizing the breach of a private contract, but that does nothing to stop distribution by individuals online. Trying to go after the platform that's hosting said content is also extremely difficult, which is a big reason why Hunter Moore was able to keep Is Anyone Up? running for so long.

    Proving intent will already be difficult at a criminal trial, as the law essentially sets up a he said, she said situation (or whichever pronouns you prefer) in every single case, which are difficult to prosecute. Moreover, criminalizing the breach of a private contract, however well-intentioned and nuanced it may be in this case, is a troublesome precedent. Normally said disputes would be dealt with in civil courts, and revenge porn currently is no different.

    It's also more disgusting than a contract dispute over plumbing services or something more mundane, which adds an extra barrier for victims to overcome when thinking about a civil suit. That's not to mention the extreme cost: Spending thousands, if not tens of thousands, of dollars in the hope of winning a judgment against an ex is a course of action few people can justify.

    That, combined with the fact that photos online will never go away, is a good reason to try to deter revenge porn by criminalizing it. With lawmakers already making hamfisted laws to ban or restrict photography in the name of privacy as well as protect copyright as aggressively as possible, it's easy to wonder why legislators have been reserved in this case. But adding more broad laws that improperly regulate the internet isn't the answer.

    A solution needs to be found, and it's going to require a savvy legislator to do so. Florida's attempt to pass a ban earlier this year got hung up on specifics. As one law professor told Salon, the law did a good job of defining context—a nude photo in private should be treated differently once it's disseminated—but then failed at properly defining the parameters of what types of nudity and photos it'd concern.

    New Jersey has focused more on defining disemmination of private porn as an invasion of privacy. Following the suicide of Tyler Clementi, his roommate Dharun Ravi and Molly Wei were charged with "invasion of privacy," among other counts. While privacy protections vary by state, that tack is perhaps easier for prosecutors to take, but arguing that spreading a photo shared with a defendant invaded the subject's privacy is more difficult than if it was stolen, especially without a law specifically concerning that case.

    It's unclear if the California law will make its way through legislature (although it's sailed through so far), and if it does, Governor Jerry Brown still has to sign it. The ACLU's reservations in this case are indeed valid, but the sentiment is valuable. Few people would argue that revenge porn itself is anything but vile, but criminalizing the act is a rather sticky situation, which is why it's not been banned all over the country yet. What's likely going to have to happen is for some lawmaker somewhere to draft the ideal legislation, which then can be modeled elsewhere. Until then, there's one simple recourse: Don't send anyone pictures of your privates.

    @derektmead

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