The war against “revenge porn” is about to enter Congress.
Rep. Jackie Speier, D-Calif., is preparing to introduce legislation to criminalize the non-consensual online dissemination of lewd content by jilted lovers and hackers, her office confirms to U.S. News.
This is the big prize to the crusaders, as it accomplishes what state law cannot:
Most websites hosting revenge porn, however, cannot be forced to remove the content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn’t violate federal copyright or criminal law.
University of Miami law professor Mary Anne Franks, an advocate for victims of revenge porn and a board member of the Cyber Civil Rights Initiative, is helping to draft the legislation.
If disseminating “revenge porn” becomes a federal crime, websites “wouldn’t be able to raise the special Section 230 defense that intermediaries are sometimes able to raise with regard to other unlawful activity,” Franks tells U.S. News.
Search engines and website that host third-party content might be required to remove or block access to revenge porn if its distribution becomes a federal crime, as is already done with child pornography and copyright violations.
Ironically, Franks just posted another of her vapid ad hominem tumblr attacks on Mike Masnick and Tim Cushing of Techdirt for lying about her purpose of circumventing Sec. 230 protection (and calling me a “pervert blogger” for fun in the process, though she passive-aggressively fails to name me, but links back here with a proxy link so I don’t get the Google juice from her 12 readers).
While lawyers (except the few Franks’ true believers) are unlikely to fall for such shenanigans, it creates confusion for others, who are constrained to rely on others for legal analysis. It’s a tactic of desperation, but it’s effective in confusing the ignorant. And shameless advocates will do whatever it takes to win their cause, even if it requires them to wallow in the gutter.
The confusion sown by the rhetoric of the anti-revenge porn advocates is apparent in this Gawker article by Michelle Dean:
With Rep. Jackie Speier’s announcement yesterday that she intends to introduce a federal bill criminalizing “revenge porn” into the house in the month, people were asking the same question they often ask about revenge porn: Why isn’t this already illegal?
The short answer is that law enforcement often doesn’t take it seriously. There are existing laws against harassment, but even victims of ordinary harassment have always had a hard time getting the authorities to pay attention. And anecdotal evidence suggests that the cops tend to presume that harassment laws don’t apply to the behavior of the kind of people who contribute to websites like Is Anyone Up, You Got Posted, and myex.com (“It’s just online”).
That’s the pitch of advocates, which is not merely anecdotal, but a strawman. The problem is that non-lawyers lack the knowledge and experience to appreciate that criminalizing speech presents massive constitutional issues. While the Franks camp is working full-time on trying to push their agenda, there is no organized opposition per se, and it’s left to organizations that support civil liberties, like the ACLU and the EFF, together with a few blawgers, to note the problems. In return, we suffer Franks’ name-calling and attacks. So be it.
While the issues raised by state laws are bad enough, this federal law elevates the problem to a level that may well fundamentally alter the nature of the internet. Conceptually, the point is that third-party hosts, ranging from Google to Twitter to blogs and everything in between, which now enjoy the safe harbor of Section 230, would become criminally liable for what is uploaded by others.
Other than commercial porn websites, this creates a massive incentive for hosts to censor the internet of all provocative images. After all, how would Google know if the person in an image consents to its display? Why would Google want to risk its own criminal culpability so some yahoo in Iowa can post a nude picture? Google loves you, but not enough to go to prison for you.
But the spin is that this will only impact the bad dudes, the Hunter Moore’s who run the websites that gave rise to this fury:
As Mary Anne Franks, a University of Miami law professor who is working on the Speier bill, wrote to me in an email:
… online entities protected by Section 230 of the Communications Decency Act are provided with a special defense against state criminal laws, but not against federal criminal laws (or federal copyright laws, for that matter). A federal law means that a revenge porn site claiming to merely provide a platform for angry exes to upload sexually explicit images of their former partners will not be able to hide behind Section 230.
Had Franks been a lawyer, she might be more reluctant to proffer such a flagrantly deceptive pitch. A federal law means that all websites, all services, all apps, every third-party host, not just a “revenge porn site claiming to merely provide a platform for angry exes,” will be required to censor or suffer prosecution. She left that part out. Oops.
This isn’t about a takedown regime, like a DMCA notice, with ensuing damages, but criminalizing content. It’s scorched earth for images, but by wrapping it up in the rhetoric of revenge porn, non-lawyers fail to recognize that it applies to everyone. This won’t escape notice by Google, Facebook and Twitter, who aren’t in the business of defending the First Amendment rights of their users at the risk of their own criminal liability.
So the emotional appeal, the intellectual dishonesty, the facile anecdotes and the vilification of anyone who disagrees will persist in the hopes that politicians will see this as the new “get tough” mechanism to appeal to the masses. When the smoke clears, it may well mean the end of revenge porn (unless it offshores), but it may also mean the end of the safe harbor that protects the full panoply of content protected by the First Amendment on the internet.
Meet the future, Cleansed, sanitized and wonderful. I expect to be Godwinized any moment now. But somebody has to suffer the slings and arrows of outrageous women.
Update: This post apparently struck a chord with Mary Anne Franks, who twitted this gem:
So now I’m not merely a “pervert,” but I “tried to solicit #revengeporn.” How so, you ask? Because of the title to this post: New York to Revenge Porn: Any Selfies of Lawprof Mary Anne Franks? And if there was any doubt as to Franks’ integrity, now you know.