Cuomo Signs NY Revenge Porn Law

The law costs nothing. It doesn’t piss off the police. And it buys the appreciation of that select group of women who fear their selfies won’t self-destruct. The New York Lege has passed a Revenge Porn law and Gov. Andy Cuomo has signed off on it. The deal is done.

§ 245.15 Unlawful dissemination or publication of an intimate image.

1. A person is guilty of unlawful dissemination or publication of an  intimate image when:

(a) with intent to cause harm to the emotional, financial or physical welfare of another person, he or she intentionally disseminates or  publishes a still or video image of such other person, who is identifiable from the still or video image itself or from information displayed  in connection with the still or video image, without such other person’s  consent…

As revenge porn laws go, it’s better than most. It has an intent to harm clause, even if the harm is so vague as to cover almost anything, a tiny bit of twisting will more than suffice to bring a tear of unpleasantness under its ambit. And the inclusion of “financial” means not only direct financial harm to the “victim,” but gain to the accused which would necessarily deny that gain to the victim and cause financial harm.

So what’s prohibited?

(b) such still or video image was taken under circumstances when the person depicted had a reasonable expectation that the image would remain private and the actor knew or reasonably should have known the person depicted intended for the still or video image to remain private, regardless of whether the actor was present when the still or video image was taken.

How one knows what another person intends is one of the grand mysteries of life. Of course, after they complain, their intent is whatever they say it is. But what of the image sent unsolicited? What of the image that finds its way into other hands, who don’t know the person depicted but is told that it’s fair game? Kids tend to share these sexts, as most are well aware, and may not have an issue within their group, but what happens when it’s disseminated beyond their group? That might not be the plan, but who’s to say and how would anyone know where the line is drawn?

But like all such laws, the question is whether it can survive strict scrutiny under the First Amendment? There is no exception for images someone intends to remain private, despite the vague sense that privacy between people should be a right. What will it sweep within its ambit? What speech and expression will it chill for fear of committing a crime? No doubt the Texas Tornado, Mark Bennett, can come up with a dozen examples, but it’s not important at the moment. Life invariably comes up with its own, often far more disturbing than even Bennett’s fertile imagination.

Curiously, the law has an express carve-out for Section 230 of the Communications Decency Act safe harbor.

4. Nothing in this section shall be construed to limit, or to enlarge, the protections that 47 U.S.C § 230 confers on an interactive computer service for content provided by another information content provider, as such terms are defined in 47 U.S.C. § 230.

This is to soothe the concerns of Google and Facebook, that they commit crimes by hosting images of others, and were major opponents of the law without this exception. Now that it merely impacts our First Amendment rights, they’re good to go.

Does anyone care about the First Amendment rights of those less-than-evil actors caught in the net? Not Bethany Mandel.

New York lawmakers just took a giant leap forward to help victims of revenge porn, by toughening consequences for those who perpetrate one of the most pernicious forms of online abuse. And by giving their targets a way to fight back.

Revenge porn, as it’s commonly understood, is indeed pernicious. That the wrong is real isn’t the question. But that’s where the syllogism kicks in.

Something must be done.
This is something.
This must be done.

It takes little effort to explain why pics that seemed like a good idea at the time end up being a nightmare later, and Mandel brings it home so that anyone inclined to send nude pics of themselves to others can feel the pain.

Let’s face it: Breaking up in the age of social media is hard: Do you delete all the photos you took together as a couple, even from vacations and group outings with friends? Do you unfollow and de-friend your ex on Instagram, Facebook and Twitter — is that petty or just a way to try to get that person out of your mind?

For some couples, there’s an added question: What about those pictures? Not the ones at the beach or the farmer’s market, but those pictures? The ones they sent when they were on a business trip and missed each other?

Some business trips are not like others, but that’s fine. To each his own.

Until a few years ago, in most parts of the country, there was nothing anyone could do about it. So states began passing laws, and now, thankfully, New York will also treat the crime with the seriousness it deserves.

No mention of the states whose courts have held the law unconstitutional, or the states who refused to pass the law because of its clear First Amendment implications. But then, when you’re against a horrible crime, the law that criminalizes it must be good, constitutional rights and innocent defendants are just the price you pay to get the bad guys.

For victims of revenge porn, this is the most important component of the new law: Along with having sick creeps prosecuted, there will be ways for victims to regain their privacy.

For the rest of us, it’s just one more overbroad law that ignores the First Amendment.

13 thoughts on “Cuomo Signs NY Revenge Porn Law

  1. DaveL

    “Subsection 1 – Short Title: This section may be referred to as ‘The Anthony Weiner Protection Act’.”

      1. B. McLeod

        Ooops. Still in until May, apparently. He will be released early, but has not been as yet.

        1. SHG Post author

          Odd that no one thought to check or correct you. Weiner may not be as much of a Danger as he thought he was.

        2. B. McLeod

          I’m really missing the ball today. The most recent reports say he was released February 17.

  2. burban

    “…there will be ways for victims to regain their privacy.”
    Mandel has no idea how the internet world works. Like an elephant, the internet never forgets. Privacy is a thing of the past. In the internet era, you can no more regain your privacy than you can regain your virginity.

    1. SHG Post author

      The new law includes a private civil cause of action and the ability to obtain an order to take down an unlawful image. Whether that will accomplish what its proponents believe is another matter.

  3. CLS

    In addition to being overbroad and ignoring the First Amendment, all these revenge porn laws are sucking the fun out of the Mighty Mighty Bosstones’ song “Pictures to Prove It.”

  4. Jake

    Working in entertainment and marketing, it’s always been a baseline assumption we can’t use someone’s likeness unless we have a signed release. How are ‘those pictures’ different?

    1. SHG Post author

      You put them to commercial use, which is entirely different issue.

      [I’ve trashed your follow up comment. As I’ve already explained to you, just because you don’t get law does not make this the “explain law 101 to Jake blog.” Stop.]

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