If only we were allowed to applaud the prosecution of people we hate because, well, we hate them, the arrest and prosecution of Kevin Christopher Bollaert would be a no-brainer. Via Eric Goldman:
The California Attorney General’s office announced the arrest of Kevin Christopher Bollaert for his role in a revenge porn scheme. Most folks are cheering the arrest for understandable reasons: revenge porn is odious, especially when victims must pay to remove content.
Bollaert’s website, UGotPosted, was a toilet.
Prosecutors said the website also sought to extort money from the people featured on the site by charging a fee to have pictures taken down.
“This website published intimate photos of unsuspecting victims and turned their public humiliation and betrayal into a commodity with the potential to devastate lives,” California Attorney General Kamala Harris said in a statement.
While those who upload images of others to exact revenge and humiliate others who they once cared about are sick, demented human beings, those who run the websites where the images, coupled with identifying information like names, addresses, phone numbers, sufficient to destroy their lives, are in it for money. They may claim grander goals, but they’re scum and liars. They just want money. And Ballaert’s way of making a buck was, to borrow from Goldman, particularly odious.
The authorities alleged that Mr Bollaert also ran changemyreputation.com, a site that offered services to have pictures from UGotPosted removed for a fee of about $300.
According to court documents, he is said to have made “around $900 per month from advertising on the site and records obtained from his changemyreputation.com PayPal account indicate that he received payments totalling tens of thousands of dollars”.
Sound familiar? As much as I’ve argued against the misguided efforts to criminalize things on the internet that will sweep lawful, protected speech and expression along with outrageous conduct like revenge porn, I have no qualms with using existing criminal law surgically to excise this cancer. But then, it appears that whoever drafted the complaint (presumably deputy attorney general Tawnya Austin) against Ballaert wielded a bludgeon rather than a scalpel.
The complaint, far heavier on empty accusation than substance, alleges 31 counts against Ballaert. That’s a lot of counts, but despite its big number, does little to illuminate the conduct of which Ballaert is accused to support the rhetoric. As Goldman correctly notes, that’s not good.
The nature of many of the charges fall into three categories, relating to identity theft, online harassment and the civil tort of public disclosure of private fact. As Goldman goes on to explain, that would pretty much criminalize every website involving user generated content, not to mention fly in the face of Section 230 safe harbor.
However, the extortion charge, that he uploaded the revenge porn on one side and then demanded money to take it down on the other, is a different matter. Goldman doesn’t seem to think that it will reach the point of a court determining the legal sufficiency of the charge:
I doubt we’ll get a judge’s take to these crucial Section 230 questions. Like most defendants overwhelmed by a prosecutor’s power and resources, Bollaert probably will take a plea deal that lets him enjoy at least some of his remaining years. A plea deal will also allow the California Attorney General’s office to issue the inevitable press release proudly touting how it was tough on crime and implicitly asking for our applause. Whether you’ll still be applauding probably depends on if you believe the ends can justify the means.
Why he assumes that there will be a rush to cop out isn’t clear, and his assumption fails to reflect that there may well be a motion to dismiss, whether predicated upon Section 230 or the elements of the charge, before Ballaert makes the choice of pleading guilty or going to trial. While a negotiated plea can occur at any time, non-criminal defense lawyers often demonstrate a poor grasp of the process, and rush to such unlikely speculation.
On the other hand, it strikes me that the extortion charges have legs. To require payment to remove humiliating content doesn’t fall within the ambit of Section 230; it’s active conduct on the website owner’s part to demand money in exchange for ending something he knows to be harmful to someone. He may not be liable for another person’s uploading the revenge porn in the first place, but he can become liable when he holds it ransom.
But while this prosecution implicates many of the problems faced by all websites (and blogs) that could be attacked because someone, somewhere, got their feelings hurt, it may be one of the few instances where general deterrence matters. While it’s often held up as a justification for harsh punishment when no reasonable person could believe it will ever have an impact, the motivation of revenge porn website owners is purely financial. If they can make a buck off such disgusting content, go for it.
Yet, if the price for the buck is their freedom, or at least the cost of defending themselves (which undermines the profit incentive to engaging in extortion), others who are engaged in this conduct will take notice. As long as there is a sound basis for the charge of extortion that doesn’t implicate free speech, or the myriad other concerns that constrain criminal laws, and it serves to drive people like Ballaert and Hunter Moore out of the revenge porn business, then it’s not such a bad thing.
Whether that’s how it turns out has yet to be seen, but it’s important not to lose sight of the fact that the protection of free speech isn’t due to any love for revenge porn, but despite its being despicable.