It wasn’t that Mike Masnick’s observation at Techdirt was prescient, as much as he followed the dominoes. It was clear that the path on which the sniffling censors traveled led to Section 230 of the Communications Decency Act, as the evils they sought to eradicate crossed state and national lines. Only by going after the core of the internet could they achieve their goal, and Mike saw it coming.
Naturally, the response was to attack Mike. And Mary Anne Franks did what her ilk does, to shriek that Mike was a liar. And when the time came to do exactly as Mike said she would, because it was, of course, absolutely correct, Franks again did what her ilk does. And luckily, there is no shortage of writers willing to repeat and promote the lies in support of the cause.
U.S. Rep. Jackie Speier (D-Calif.) is trying to change that, introducing last summer a bi-partisan bill that aims to cut through the murkiness of nonconsensual pornography legislation in one fell swoop. If passed, the Intimate Privacy Protection Act would criminalize the knowing distribution of sexually explicit images of people without their consent. Perpetrators could face fines and up to five years in prison.
But what of the other side? What about the rights trampled in the process of achieving the censor’s ends? They’ve got that covered too.
But one organization that IPPA supporters thought would be in their corner isn’t.
The American Civil Liberties Union maintains that there should be a clear intent to harm on behalf of the distributor of the images, and an expectation of privacy when it comes to the person whose image is being distributed. While the ACLU hasn’t taken a formal position on the IPPA, the organization expressed concerns that the bill contains neither of those provisions.
Where the bill’s proponents and the ACLU appear to clash is over those instances mentioned earlier regarding entertainment. The IPPA’s focus on harm here over intent bothers the ACLU.
But the ACLU defended the free speech of neo-Nazis in Skokie, right? Well, sure, but that was then. This is now. The ACLU feels the pain of the victims of revenge porn. Who wouldn’t? And so it has come up with an unofficial compromise.
The ACLU’s Macleod-Ball refutes Franks’ assessment. “If you’re going to institute a criminal penalty for certain actions, you ought to make sure that there are legitimate privacy interests that are being violated,” he says by phone. “And having something that addresses the expectation of privacy of the person whose image is being posted is one aspect of looking at that.”
The ACLU stresses the importance of paying close attention to those kinds of details and creating specific, airtight laws.
“Having definitions that are not precise enough simply gives more discretion to those who are exercising the great weight of the state,” Macleod-Ball says. “We don’t want to see those kind of tools for abuse in the hands of people who have that power.”
Notice the phrase, “expectation of privacy” in there? That sounds vaguely familiar, right? It’s taken from Katz v. United States, which bears upon the application of the Fourth Amendment when governmental action impairs an individual’s reasonable expectation of privacy. The prohibition is upon the government, not anyone and everyone. You have no protected right to privacy from others. Maybe the ACLU doesn’t know this. Maybe they know this and don’t care.
No matter. Either way, the “debate” is constrained to a very narrow issue: “intent.” Why? Because the loyal opposition says so. When people write about this, put words on screens for the purpose of informing others, they do so with an appearance of balance by framing the debate. Here, the debate is framed by Franks, whose argument is that the only way to assure that no one escapes her clutches is to lie about the absence of any First Amendment implications.
On the other side is the NGO that everybody accepts as the credible savior of constitutional rights, the ACLU. And the censors couldn’t be happier, as they’ve achieved most of their goals already by constricting the debate to tweaking the details since the ACLU has already given up with the primary contention that there is no privacy exception to the First Amendment. And they much prefer each other’s company to that of others who don’t share their feelings toward things like prohibiting hate speech and special protections for women.
There has been a renewed push of late, reflected in the crafting of a myth about the heroines of the cause. Much as the progressive view is that the apocalypse is upon us, there is concern that the incoming president lacks much of a concern for free speech, combined with a desire to appear tough on crime, plus a facile interest in doing something that might make him look more appealing to women’s causes. This law would do the trick at no cost to anything that matters to him otherwise.
And to add insult to injury, it will come with the ACLU’s blessing, provided it makes an insignificant tweak here and there. After all, if the ACLU says it’s totally constitutionally kosher, who could possibly complain?
On the day after Donald Trump was elected president, the ACLU announced that it had received a record amount of donations. No one voted for the ACLU to decide how much of your constitutional rights to give away in its pursuit of its causes, unless you consider the donations as a proxy of its support, and its ability to speak for Americans’ constitutional rights. They’re going to have the wherewithal to throw one hell of a party when Congress undermines the First Amendment, not to mention the safe harbor of Section 230.
But what sort of jerk would question whether the ACLU has the authority to decide that his constitutional rights are theirs to give away? Maybe you agreed to let the ACLU be the guardians of your civil liberties, but I didn’t.