Rep. Jackie Speier Finally Reveals Her Scheme To Destroy The Internet (Update x2)

It’s been a very long time coming, with pronouncements as far back as 2014.

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.

Since then, crickets.  Until now. Given that it’s been years in the making, one might suspect that Speier would have come up with something really well-conceived, addressing the rampant unconstitutionality of what’s been proposed up to now. After all, there is only one reason, one, for the creation of a federal revenge porn crime. That is to overcome the safe harbor of Section 230 of the Communications Decency Act, that allowed the world wide web to exist.

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.

A “technicality” that shields criminals? Well, Jackie Speier with her sidekick, Mary Anne Franks, to the rescue. They call it the “Intimate Privacy Protection Act,” and sadly, it’s little more than a banal rehash of the same bad law Franks has been pushing all along.

The Texas Tornado, Mark Bennett, takes his Ginsu knife and slices and dices the proposed law. A brief taste, just to whet yer whistle:

So a depiction of an unidentifiable person engaging in sexually explicit content does not trigger the statute unless the depiction includes his naked pink parts, in which case it doesn’t matter that he is unidentifiable. This statute, like others, will capture the innocent behavior of sharing naked baby pictures.

…with reckless disregard for the person’s lack of consent to the distribution…

This is the culpable mental state, or mens rea, requirement. It’s not very strong. While it’s greater than Mary Anne Franks’s proposed “knew or should have known” (negligence) standard, it doesn’t satisfy Danielle Citron’s demand that “it is crucial to craft narrow statutes that only punish individuals who knowingly and maliciously invade another’s privacy and trust.”

As poorly drafted and ill-conceived as it’s been from the outset? Maybe worse, actually.

(3) CERTAIN CATEGORIES OF VISUAL DEPICTIONS EXCEPTED.—This section shall not apply in the case of a visual depiction, the disclosure of which is in the bona fide public interest.

The you-can-trust-government provision. I discuss it here; as Professor Neil Richards writes, “the power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor.”

In tacit response to criticism, after the usual phony denial, Franks came to the realization that her bravado didn’t change the gaping hole of public interest, but she was so desperate to make the hole so narrow, so controlled by the forces of speech prohibition, that she included it to pretend to cover the problem, while couching it in words that would let no one she hated go unpunished.  In this iteration, she included the words, “bona fide.” After all, who would want some miscreant to use the escape hatch if it wasn’t bona fide? Isn’t bona fide a good thing?

No, It’s the way for martinets and government censors to second guess your choice and punish you if it doesn’t pass their notion of “bona fide public interest.” Want to risk the wrath of the United States Board of Internet Censorship?  Post at your peril.  And that doesn’t address the aspect that public interest is just the tip of the iceberg of free speech at risk.

But what of the big issue, the real reason why Speier hopped on the Train of Tears?  Bennett, recognizing the limits of his expertise, takes a pass.

(4) TELECOMMUNICATIONS AND INTERNET SERVICE PROVIDERS.—This section shall not apply to any provider of an interactive computer service as defined in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. 230 (f)(2)) with regard to content provided by another information content provider, as defined in section 230(f)(3) of the Communications Act of 1934 (47 U.S.C. 230(f)(3)) unless such provider of an interactive computer service intentionally promotes or solicits content that it knows to be in violation of this section.

I’ll leave this to the Section 230 experts.

I’m no more expert at Section 230 than Mark, but I’m still going to take a stab, subject to what more knowledgeable folks might have to add.  Second 230(f) identifies two types of entities on the internets.

(2) Interactive computer service

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

(3) Information content provider

The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

Subdivision (f)(2), “interactive computer services,” refer to things like search engines.  Subdivision (f)(3), “information content providers,” refer to things like SJ, websites that provide content (information, to be kind).  It’s unclear to me where services like Twitter and Facebook fit in here, but it seems to me they have attributes of both, so they can likely claim entitlement under (f)(2).

And guess what? Interactive computer services are exempt from culpability.  Nobody at Google is going to prison under this law.  Me? Not so much. You, your kids, your friends? Fuggedaboutit.

Update: Mary Anne Franks has stuck her head out from under her rock.

Law professor Mary Anne Franks of the University of Miami School of Law, who helped draft the bill, said couching the standard in terms of consent makes the proposed law more effective. Many times, she said, perpetrators are not operating with clearly malicious motives — sometimes they distribute material just to be funny or entertaining. That conduct should still be illegal, she said.

The bill’s drafters acknowledge that there will be opposition, particularly on First Amendment grounds. But they insist the law passes constitutional muster.

“We worked extensively with constitutional experts on the bill, a dozen of whom have said that this does pass First Amendment scrutiny,” Franks said.

Constitutional experts? Really? Like who, Mary Anne. Given all the lies you’ve already told, prove it because I call bullshit. You claimed that Eugene Volokh approved of your bill, and that was a lie. Who now? You can hide, but your lies keep finding you.

Update 2: And the lies unravel. The “12 experts” consists of Erwin Chemerinsky, Neil Richards and “@Facebook and @Twitter.” Can’t be, you say?

Franks2

And then, Richards chimes in that  “I didn’t consult on the bill before the discussion draft was released, and I would prefer an intent test over recklessness.” Not that he said, as Mary Anne pretends, that it passes First Amendment scrutiny, or that he even saw the law (“worked extensively,” Mary Anne?) before Mary Anne started spewing lies.

Chemerinsky has yet to be heard from, though given his progressive stance toward the First Amendment, he might well have no issue with First Amendment violations when they comport with his ideals.

17 comments on “Rep. Jackie Speier Finally Reveals Her Scheme To Destroy The Internet (Update x2)

  1. Patrick Maupin

    Playboy Magazine saw this coming from a mile away. Now if Mary Anne can tweak this a bit to hold accountable the ugly people who are still showing way too much skin to me in my own browser window in the sanctitty of my own house without my consent, she might just have something.

  2. Erik H.

    I agree with Bennet that this is not constitutional. And I agree with his parsing as

    1) A visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or
    2) A visual depiction of the naked genitals or post-pubescent female nipple of a person.

    But I wonder if that’s a drafting error or a deliberate overreach? Given the constitutional issues and the difficulty of getting something like this through at all, it seems odd to focus on criminalizing the distribution of a nipple picture, when nobody (other than perhaps the owner of the nipple in question) can possibly recognize it. A smarter, albeit still problematic, statute would be “(identifiable) PLUS (explicit or genitals)”

    1. SHG Post author

      I will alert Bennett as to your validation. It may well cause him to drink heavily, which may delay his thoughts on your remarkably obvious question. Hang tight.

  3. Jim Tyre

    Subdivision (f)(2), “interactive computer services,” refer to things like search engines. Subdivision (f)(3), “information content providers,” refer to things like SJ, websites that provide content (information, to be kind).

    That’s not quite correct. When you write your own musings on SJ, you’re an (f)(3) information content provider. But when you allow comments from your readers, SJ is an (f)(2) interactive computer service. In general CDA law, the distinction has significance. If you libel Bennett on SJ, CDA provides no immunity to you. But if I libel Bennett in SJ comments, I have no immunity but you do.

    As you note correctly, CDA always has had an exception for violation of criminal law. Since IPPA would be a new criminal law if passed, it needs its own built in carve out. The problem here is the scope of the carve out. “… intentionally promotes or solicits content that it knows to be in violation of this section” doesn’t play well with CDA caselaw, or at least it didn’t until about 5 years ago.

    I don’t have the exact date handy, but about 5 years ago, the Ninth Circuit decided the truly awful Roommates.com case, which made it more difficult, in some situations, to claim CDA immunity. Other cases, mostly from the Ninth Circuit, have built on that since, and since the bulk of the significant CDA cases are against big sites such as roommates.com, Ninth Circuit caselaw is the most significant.

    CDA experts (not me, but I know many) really aren’t sure how the IPPA carve out fits into the post Roommates.com landscape. To be sure, no one likes it, but whether it would withstand judicial scrutiny is murky.

  4. Jake DiMare

    Sweet click bait headline…You’ve got a knack for hyperbole.

    Seriously, you think you’d be happy about how narrow this first step towards legislated protection of personal data is in the US. Compared to the regulations EU residents have welcomed with open arms, this salvo has all the destructive power of a slingshot.

      1. MonitorsMost

        Scott,

        Seriously, you think you’d be happy that this law doesn’t provide that criminal charges brought under the act only have to be proven by a preponderance of evidence. Why can’t you be excited about legislation that is carefully tailored to be only narrowly facially unconstitutional? After all, people in Russia have welcomed infringement of their civil liberties with open arms.

    1. Mark W. Bennett

      Would we rather the next step toward criminalizing pornography be broader (and less likely to pass court muster, though more damaging if it does) or narrower (vice versa)?

      1. Jake DiMare

        Don’t get me wrong, as a marketer who leverages FUD for results I respect the effort to reframe some democratic congresswomen in San Francisco trying to enact legislation about protecting personal data as an attack on porn, or the internet, or free speech…Especially when all your conservative buddies over in the GOP declared this week that internet pornography is a PUBLIC HEALTH CRISIS and a PUBLIC MENACE.

        A+ for getting the hoople heads all riled up and pointed in the wrong direction boys. Carry on!

        1. SHG Post author

          The problem with people who latch on to their politics as a means of concealing their unprincipled stupidity is that they impute it to those who point out their unprincipled stupidity. This isn’t political, but constitutional. By writing “your conservative buddies over in the GOP,” you exposed your own hypocrisy and blindness. Why not tell him he dresses funny and his mother wears army boots as well. It’s just as intelligent.

          Or TL;dr, you not only blew any hope of substantive response, Jake, but painted yourself the asshole. Not a good look.

        2. Patrick Maupin

          So you’re so busy focusing on the republican efforts to remove all your wank material that you didn’t even think about the fact that when people work to keep the democrats from criminalizing a subset of that material it also makes it harder for the repubs to take it all?

          I suppose panic will do that to you.

    2. Dan Rosendorf

      Please don’t make it sound as if anything that happens at the EU level actually has real support from the people of the EU. Maybe the Germans and the French have some influence, but for many of the smaller nations we just get saddled with insanely inane regulations that we don’t want or understand (I’m not a lawyer but from what I’ve seen so far the US federal law reads like a manual compared to the random spoutings of a madman which is EU law). The amount of power we have to affect anything is minuscule even if all the people in the EU parliament weren’t just burned out local politicians that no one is willing to even talk to anymore.:(

      1. SHG Post author

        Not to worry. Jake suffers from two deficits. First, that anyone other than passionate progressives gives a damn about what happens in the EU, and second, that anyone who doesn’t adhere to the passionate progressive agenda is a wingnut conservative. In other words, his cred is blown either way.

  5. pml

    The simple answer is don’t let someone take pictures of you naked and if you are stupid enough to allow them to take them, don’t snivel when they get posted somewhere.

    1. SHG Post author

      Simple answers for simple folks. But we’re past that now that there is a bill being proposed, so let’s deal with the bill.

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