For all those who complain that the states on the coasts think they’re better than the flyover states, there’s only one thing to say: Pfffft. See? We can be just as stupid as you are. Meet the New York State Senate.
For all the advantages that the Internet provides, it also assists individuals in perpetrating harm upon others. Social media allows for the widespread dissemination of information and images, and websites devoted to providing people with a means to perpetrate revenge upon former spouses, girlfriends or boyfriends have been created.
And so they passed S5946A-2013, which provides:
S 250.70 UNLAWFUL DISSEMINATION OF AN INTIMATE IMAGE IN THE SECOND DEGREE.
A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OF AN INTIMATE IMAGE IN THE SECOND DEGREE WHEN, WITH INTENT TO HARASS, ANNOY OR ALARM ANOTHER PERSON, HE OR SHE INTENTIONALLY DISSEMINATES AN IMAGE OR IMAGES OF THE SEXUAL OR OTHER INTIMATE PARTS OF ANOTHER PERSON WITHOUT EXPLICIT CONSENT OF SUCH PERSON TO DISSEMINATE SUCH IMAGE.
The first offense is a misdemeanor. The second in ten years is an “E” felony. Cool, right? An “images of the sexual or other intimate parts” is defined in §250.40 as:
3. “Sexual or other intimate parts” means the human male or female genitals, pubic area or buttocks, or the female breast below the top of the nipple, and shall include such part or parts which are covered only by an undergarment.
Yes, that means underwear advertisements are criminal, side-boobs are criminal, even at the Oscars, breasts are criminal even though they’re allowed on the beach and any image of Rihanna is criminal. Best you watch your tween’s Pinterest account closely.
But what about the “lawful public interest” exception, that no-brainer that even the zealous advocates tacitly conceded was absolutely necessary to survive superficial scrutiny? Not for the New York Senate. Perhaps the notorious Anthony Weiner selfie strikes too close to home, but it’s nowhere to be found. Sure, there are other exceptions needed as well, but this law includes none of them.
Yet, the language of the bill strikes a familiar note. What is it about “harass, annoy or alarm”? Oh yes. That would be the language the Court of Appeals held unconstitutional in People v. Golb a month ago. But they’re really, really busy being senators, and they don’t have the time to waste reading court opinions or thinking hard thoughts about constitutionality.
Guess what, Senator. I’m allowed to annoy you. I want to annoy you. Am I annoying you yet? And if you think that sucks, just wait until I alarm you. Oh yes, I plan to alarm you as well, because you need to be alarmed.
The law is a fiasco, not even arguably constitutional or even remotely sensible. But then, our conservative “tough on crime” New York Senate knows something that you may not know. They have a liberal Assembly who has yet to pass the bill, and so they can pass a piece of unconstitutional garbage like this with the comfort of knowing that it now becomes the Assembly’s problem to fix.
Cool trick, Senator.
Except there may yet be a problem. While the bill plays well to the tough on crime crowd, it also plays well to the progressive protect women crowd, even if it means enacting an unconstitutional bill that is absurdly vague and overbroad. So while the Senate could reliably depend on the Assembly to do the heavy lifting of rejecting the unconstitutional laws it passes so they can go back to their constituents and show what a great job they’re doing (if only that liberal Assembly didn’t screw it all up), this time they may find out that each, for its own reasons, will turn a blind eye to the law and Constitution.
So now it’s in your hands, Assembly. You want to protect women. Everybody hates the real revenge porn sites and those who fill it with hatefulness. After all, there’s always the Court of Appeals to toss the law because it’s facially unconstitutional. Isn’t that what courts are for?
Except for those guys against whom this law is used who aren’t engaged in revenge porn. Except for those who are turned into criminals, cop out because they can’t make bail, and have no appeal? Except for those who are convicted in the years between the time this misbegotten law is enacted and the time the Court of Appeals finally tosses it.
In Golb, they held New York’s aggravated harassment crime unconstitutional. It’s been on the books since 1965. Who cares how many people were convicted of an unconstitutional law, right? After all, think of all the play you got between 1965 and now, and anyone convicted deserved it anyway.
So if I play a practical joke on my buddy by emailing him a nudie pic to his work email (admittedly not the best practical joke in the world, but effective nonetheless), am I guilty of a misdemeanor? After all, I’m intending to alarm him, and I don’t have the explicit consent of the subject of the picture.
You bet!
You happened on the “explicit consent” prong, which means that even pics posted originally with full permission are a crime when reposted by someone without explicit consent. It also creates a burden shift to the defendant to prove explicit consent, even though it offers no clue what exactly it means.
This doesn’t even account for what I assumed was considered the really big problem, which is posting nude pics online. It seems that a lot of people post naked pictures of ex-lovers without their permission, but due more to indifference than to any sort of spite — much less intent to “annoy, harass, or alarm.”
Without an intent element, the law is constitutionally screwed. But then, with an intent element, it fails to cover everything the anti-revenge porn folks want it to cover, which is every possible motivation, from prurient to profit, or no motivation. Their point is to stop it, regardless of mens rea. They really aren’t particularly concerned about the culpability of the defendant.
One of Mary Anne Franks’ sycophants, Carol Goldberg, has conceded that this bill sucks too, while also disclaiming blame for this ugly baby. But she included this:
I’m pretty sure that you are the wartbag (b)lawyer.
[Ed. Note: I had to save you from spam. Must you be so high maintenance?]
That was nice of her to give me a shout-out. I’m sure she will become more gracious when she grows up.
Edit: Now that I’ve read her post, it’s good to see that she recognizes at least some of the massive failings of the Senate bill. Though she remains disingenuous, facile and self-serving about it, it’s a start toward a small recognition that even the most zealous advocates for a cause can’t be totally blind.
And not even a “donotlink” to you. Because a blog nobody knows exists might add to SJ’s prominence.
Sorry about the spam thing. No clue what that was about, but I promise to beat myself later.
Heh. That would be far too painful. I don’t think she has a firm understanding of how the internet works yet, but that’s okay. SJ will survive such pettiness.
You’re The Wartbag and I often go by the noms de plume of The Warthog . . . Separated at birth?? . . . Warts rule, unless they’re venereal warts, in which case such warts definitely do not rule . . .
But I still don’t know what “wartbag (b)lawyer” means. Must be one of those kid things.
Based on my mad Google/Copy & Paste skillz, I believe you are correct. The future belongs to the dim and dimmer; we are doomed, I guess . . .
FROM the “Unofficial Feed the Beast Wiki”:
“The Nether Wart Bag is an item added by the Natura Mod. It is used for more efficient storage and planting of Nether Wart. In addition to simply storing 9 Nether Wart like a storage block, right clicking in the center of a 3×3 area of Soul Sand with a Nether Wart bag will plant 9 Nether Wart on the entire area, making manually replanting large fields much easier.”
FROM a ‘TV script’ entitled “BYE BYE BERSERKER BABOON” – Written by Roger Slifer:
“BABOON MESSENGER
I know, but it was them! The toads are invading our world!
JENNY
You can say that again! Look!
She points to some Stormtoad paratroopers. A random baboon who appears
to be shirtless sees the paratroopers out his window.
BABOON IN WINDOW
Toads? Invading Beetlegeusia? Ha! We’ll pulverize ’em!
Down on the ground, a baboon farmer wielding a rake (or something that
looks kind of like a rake) charges over as the toad paratroopers land
in his field.
BABOON FARMER
Come and get it, ya slimey wartbags!
STORMTOAD 1
Wrong, it’s YOU who’s gonna get it!
He fires a gas grenade that knocks out the farmer and two farmhands who
had run over to help. The farmer keeps charging even though he is
succumbing to the gas’ effects.
BABOON FARMER
Gotta… stop… them… toads…”
FROM the ‘book’ “Why Won’t You Just Shut Up — I Want to Know You Better”:
” ‘Attention class. I’m not going to keep you here long but I really do need your upmost focus at this moment in time.’ ‘Aww great now we have to listen to this wartbag’.
‘Silence please. . . ‘.
Don’t you just hate it when a teacher is in charge? All they ever seem to do is just tell us to shut it. Think about it . Your parents or guardians pay these people to order you around; they tell you sit down, stand up, shut up if they feel like it. If you don’t, they send you to another person who has a higher authority over them, and then they just tell you the same thing. That person is the headmaster.
They give us rules that I’m sure they’ve made up, and then when you have a test they just spring on you, though they claim to have told you months ago, half of the material in the test you’ve never even seen before. Maybe I’m overreacting here, I don’t know. But what I do know is. . .
Someone has to teach them a lesson, and that someone needs to be me.”
FROM the article entitled, “Instructions for Application of Topical Wart Medicine”:
“Because warts are caused by a virus in the skin, it is possible that new warts will appear while you are treating the present wart. This does not mean that you are not succeeding in getting rid of the warts, because the virus sits in the skin for some time before a new wart appears. You can go ahead and start treating the new wart while you continue to treat the old one.
In order to make this whole process easier to accomplish, making up a “wart bag” for the children can help a lot. Use a small baggie, and put into it some folded up paper towels, toothpicks, duct tape, and the container of wart medicine. That way you don’t have to look around for all the supplies each day when you want to use them.”
Finally, FROM the ‘Fan Fiction’ entitled, “Fearful Vision”:
“Nimueh had spun round and observed the two women emerging from within the trees to join them in the clearing.
‘More toys to play with,’ she rubbed her hands together, ‘Fabulous.’
‘Who are you calling a toy, you bloody evil wartbag,’ Morgana exclaimed in outrage, glaring at the woman who had the nerve to patronise her. Gwen folded her arms too. ‘I think now is the time to try to use a little, or a lot, of the thing you’ve been practising?’
It wasn’t really a suggestion as it looked as if the sorceress was mightily pissed off at the wartbag comment.
Morgana grimaced. ‘I believe you may be right.’ “
Well. Okay then.
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“Yes, that means underwear advertisements are criminal, side-boobs are criminal, even at the Oscars, breasts are criminal even though they’re allowed on the beach and any image of Rihanna is criminal.”
My lay reading of “intent to harass…” and “explicit consent” is that it does allow that kind of content while paradoxically disallowing a broad swath of facially “legitimate” (regret using that word, but lets just run with the idea that there is better and worse speech) speech, such as a news article about a nude beach with a photo of a nude beach.
The one thing I find potentially very interesting to me is that the way the consent clause is worded makes me wonder if its transferrable. Would fair use of a commercial pornographic image in discussion of pornography potentially be criminal? Not to mention potentially giving porn companies a very large stick (no innuendo intended) to fight piracy.
Like I said, I’m a layperson, feel free to correct me or just comment on my cheeto dust.
Sorry, but nothing really to correct. Since consent has to be “explicit,” it would appear that it can’t be implicit by definition.
The intent element of this offense seems to have eerie and unflattering parallels to the new consent standards for rape being pushed for by many on college campuses. I can easily imagine a prosecutor arguing to a sympathetic judge or jury that the distribution of the material should itself constitute sufficient proof of the necessary ill intent, effectively forcing an accused to try and prove that consent was given when the accuser changes his or her mind after-the-fact.
One of the errors that people who don’t practice criminal law make is that they have this weird belief that intent is proven extraneously. Intent is proven by the conduct of the crime, where people are presumed to intend the natural consequences of their actions. Thus, the posting proves the intent, with the burden shifting to the defendant to then prove an alternate intent, which requires the defendant to testify despite his 5th Amendment privilege.
Duly noted. It’s been a long time since I left the trenches.
Question,, does the “DISSEMINATION” also mean any re-posting, hosting, re-publication, or otherwise in any means as well unless explicit (with intent sure though inaction could be read as intent as well???) permission has been granted? Which would mean ISP’s, websites, individuals emailing, etc would be liable vicariously and at face as well.
Would this not come into problematic areas with s230 of your CDA, though only for ISP’s and websites leaving individuals who by no fault of their own have reposted these images on sites such as Tumblr for example up the proverbial creek in the great ‘freedom loving’ state of New York?
It has a hosting exception, so that it doesn’t violate the 230 safe harbor. That doesn’t protect reposters, however, who by definition do not have explicit consent.
Sorry I should of actually read the link… though is it just me or does anyone else find it quite strange that they would explicitly create an affirmative exception due to the CDA’s s230 though they allow the rest of the highly dubious elements to go through?
I know I’m going to regret asking this but … nah… don’t worry.. *goes off wondering why the human race even exists nowadays with the idjits running the asylum*
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