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?
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.