A Strong Federal Revenge Porn Bill: Crucial to Justice For Victims

News broke recently that Rep. Jackie Speier, D-Calif, is planning to introduce legislation into the U.S. House of Representatives that would make the practice of revenge porn a federal crime. I have represented several clients whose reputations have been attacked online, including through the deliberate dissemination of sexual content depicting them, so I have seen first-hand the damage this kind of exposure can do. What often begins as a minor act of spite goes on to take a serious toll on the reputation and psychological health of the targeted person – most often a woman.

Revenge porn is coming more sharply into focus, thanks in large part to campaigning by activists like Charlotte Laws and Holly Jacobs. As a result, many U.S. states are considering new laws. Last year, California enacted a bill that gave some protections to victims of revenge porn; now, 24 more states are debating them.

Of course, there are good laws and bad laws.  It’s crucial that Congress get this one right. I’m confident that Speier’s bill is on track, especially considering that Mary Anne Franks, a professor at the University of Miami Law School, and a powerful advocate for victims of revenge porn, is helping to draft it. Not all of the state bills are up to the mark. The California law, for example, only protects the victim of revenge porn when the material was filmed by another person. If the material is created by the victim, he or she isn’t protected, even if the posting to the internet is done by someone else.  That excludes a lot of revenge porn.  A study by the Cyber Civil Rights Initiative finds that as much as 80 per cent of it is self-created -- someone sending their boyfriend or girlfriend an intimate “selfie,” for example, that is later uploaded for the world to see – so the California law is weaker than it should be. 

Perhaps most intriguing is the prospect that this new federal law will target not only the individuals who post the offending material, but also the websites displaying it. A little known provision, Section 230 of the Communications Decency Act, has long protected websites from prosecution for content uploaded by individuals.  This makes sense for websites like Facebook and Twitter, where the platform itself does not actively collude in the abusive behaviour (although they should be responsible for sensitive materials posted by others). However, when websites are specifically designed to host revenge porn, when they boast about their intentions, and when they derive substantial profits from the suffering of others, it’s right to hold them to a different standard than governs a genuinely neutral host of user content.

Take Hunter Moore, the owner of the infamous revenge porn website Is Anyone Up. Moore was arrested recently, on charges of conspiracy, aggravated identity theft and unauthorized access to a protected computer to obtain information.  According to prosecutors, Moore paid an associate more than two hundred dollars per week to break into women’s email accounts and steal nude pictures of them.  The punishment he faces, then, hinges upon the methods he and his associate used to obtain the material - hacking. That’s what was illegal, not his subsequent posting of nude pictures and videos of women online without their consent, or his making a profit from the ensuing humiliation and voyeurism. A federal law that allows for the prosecution of people who post this sort of malign content is a good idea, and does not trip legitimate free speech rights.  But a legal way to target the sites that host this material will provide bigger, more identifiable targets for those who have been hurt, and alter the overall system that allows revenge porn to flourish.

There is more work to be done, too, to figure out how other websites will be held responsible for hosting revenge porn material. It’s not just dedicated websites that display revenge porn; it could be anywhere on the internet, from blogs, to social networks, to general pornography websites like Redtube and Pornhub, which display revenge porn alongside conventional pornography. Lawmakers will have to figure out a way to make all websites accountable to these new standards, like requiring proof that all parties consent to the posting of the video online - a move which is already been taken by some conventional pornography sites.

Perhaps the most pressing question that remains, though, is that of redress for the victims. Criminalizing revenge porn would institute an effective penalty for those who perpetrate and encourage it, and would see one kind of justice being served. But the cost of revenge porn to the reputations and livelihoods of its victims is severe. These women (mostly), living in a society which is often publicly appalled yet privately obsessed by female sexuality, often face public ridicule and lose their jobs. Even if criminal proceedings can put perpetrators behind bars, the serious financial and emotional damage to victims remains.

I think we have to press for laws that adequately compensate victims for the harm they endure from revenge porn. A Texas jury recently awarded $500,000 to a woman whose sexual exploits were secretly recorded by her boyfriend over Skype, and an Ohio court awarded $385,000 to someone whose nude pictures were posted online -- but only because she was underage in the photos. These sorts of cases are good news for victims, who appear to be gaining the support of both the public and the judicial system. But it’s only fair that victims should be able to seek some sort of redress for these very personal attacks.