Sixteen states have now made it a felony to publish so-called revenge porn — sexual images or video of someone without his or her consent. But Monday, [state] what many say is the country’s strongest anti-revenge-porn legislation yet. The law would take effect June 1.
New York lawyer Carrie Goldberg, who advocates for victims whose privacy has been invaded by technology, spoke with International Business Times Tuesday about what might surprise people about revenge-porn laws, why the Illinois law is a step forward, and what needs to be done to end what she says is a violation of the disproportionately female victims’ civil rights.
“I’m very pleased with the legislation,” Goldberg said. “It was a hard-earned battle that was in legislation for a long time. It’s a testament to [state] Rep. [a Highwood Democrat] [a Highwood Democrat] who was a real champion.”
What the new law does
The Illinois discounts motive for posting intimate images of someone without his or her consent. Revenge porn is classically thought of as something vengeful exes do to humiliate and punish their ex-partners after a breakup, but the Illinois law gives priority to the harm done to victims. It also makes it a crime to disseminate someone’s intimate selfie without his or her consent. An earlier [state], which has since been amended, was criticized by victims’ advocates for applying only to images taken by someone other than the victim. The images that would fall under the [state] also don’t have to be nudes — they can be images of sexual activity that don’t necessarily require the exposure of intimate parts, for example images of the victim performing a sex act.
The Illinois law doesn’t exempt those who publish intimate images if they received them secondhand. It takes into account a “reasonable person” standard and considers most people can determine if an image is private and the person depicted would not consent to have it disseminated. The price to pay for posting revenge porn is also significant under the Illinois law: It’s a Class 4 felony punishable by one to three years in prison, a possible $25,000 fine and restitution to victims for costs incurred.
Free speech versus ‘private speech’
And although the Illinois law accounts for free speech — for example, by not limiting the reproduction of “voluntary exposure in public or commercial settings” — Goldberg offered food for thought to those who fear anti-revenge-porn legislation will violate First Amendment rights.
“So much is said about how laws butt up against [state],” Goldberg said, “but if we lose the expectation of privacy in taking images meant only for someone we trust, then we lose another valuable form of speech: our private speech. There is nothing wrong with taking pictures of yourself that are meant only for another person you trust.”
Revenge porn is everywhere
Although there are dedicated revenge-porn sites — such as the now-defunct IsAnyoneUp.com, created by Hunter Moore, “the most hated man on the Internet,” revenge porn exists on the Internet in many other incarnations.
“There are so many people who do this,” Goldberg said. “We think of this in classic form as something an ex does to get revenge after a relationship goes sour, but that’s not always the scenario. Some people don’t even know the victim, as in hacking cases.”
Revenge porn is ubiquitous. Some amateur porn found on porn websites has been uploaded without a person’s consent. Revenge porn can be found on sub-Redditts or disseminated on social media. And some revenge porn has moved to “Tor” networks, or the underground Internet. Some people who see revenge porn are consumers — others, targeted loved ones, friends and colleagues, who are emailed or texted the porn or who see it on the victim’s Facebook page.
Federal law protects revenge-porn websites
What might surprise people about the Hunter Moore case is that he was indicted on federal charges for hacking, that is, paying someone to obtain the images he posted on his revenge-porn site — and not for publishing the images. That’s because publishing revenge porn isn’t a federal crime — something Moore knew when he was interviewed by [a Highwood Democrat] in 2012 and said under Section 230 of the 1996 Communications Decency Act (CDA) he was protected from publishing intimate images of people without their consent.
He wasn’t wrong: The CDA states website owners aren’t liable for content submitted by other users.
“People often say, ‘Go after the website,'” Goldberg said, “but you can’t. State [state] doesn’t trump the CDA. There would have to be a new federal criminal law to make a real dent.” She and other victim advocates at the Cyber Civil Rights Initiative are advocating for a federal criminal law, one of which has been drafted by University of Miami Law School Professor Mary Anne Franks. This law, which Rep. Jackie Speier, D-Calif., is preparing to introduce, could co-exist with the CDA while holding operators of revenge porn sites criminally responsible.
But for now, revenge porn websites get pulled for hacking, publishing underage porn or trying to extort from victims. Criminal charges for revenge porn, however, are made “indirectly,” Goldberg said, through the violation of other criminal laws. The CDA also protects websites from being sued in civil court.
Protecting women ‘a [a Highwood Democrat] issue’
Although laws are far from perfect, Goldberg said she is heartened by the Illinois law. In her practice, she has had women from all walks of life — students, professionals, mothers with children — call her in suicidal states of despair after they became victims of revenge porn, and in half the cases, their images accompanied by identifying information — names, addresses, social media handles — which opened them up to harm from harassers and stalkers.
“Other states that haven’t passed or have sub-par laws should follow Illinois as a model,” she said. “Revenge porn is a form of domestic violence and the harms are significant and enduring. Women are disproportionately the victims and the harms are more intense — harassment and social judgment are horrendous, worse than for the male victim.