Why It's So Hard to Make Revenge Porn Laws Effective

By Lauren Evans  |  November 16, 2017 | 2:16pm
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The New York City Council will vote on a new bill Thursday that would make revenge porn illegal, hitting violators with up to a year in jail and a $1,000 fine. Superficially, it’s a common sense measure that’s long overdue. But revenge porn is usually not a straightforward case of one deranged person vindictively posting lewd photos of their ex, but a tangle of internet privacy issues and aggressive lobbying from powerful institutions that make it complicated to prosecute.

According to the bill’s sponsor, Councilman Rory Lancman, the proposed legislation criminalizes what a lot of people think should be a criminal act. Currently, 38 states have revenge porn laws in place, but New York isn’t one of them. “We’re all kind of searching for the appropriate response to the rampant sexual harassment that permeates our society” he told Jezebel. “This is a tool that will protect ordinary women from abuse and real damage to their lives and careers.”

But revenge porn laws vary in their effectiveness, and many are not particularly helpful for victims who find themselves in wholly different circumstances than those rare, clear-cut cases that Lancman’s bill targets.

It would, for example, have done nothing to protect one Bronx woman—we’ll call her Bethany, although that is not her real name—from the situation she found herself in earlier this year. Bethany told Jezebel that in February, her sister received a Facebook message from a stranger, alerting her that nude photos and videos of Bethany were being shared by hundreds of people on Tumblr. The images were from a decade prior, when Bethany was 17 and dating her high school boyfriend.

Bethany hardly remembered that the images had even been taken, and had long assumed her ex had deleted them. Now 27 and a graduate student in social work, Bethany was shocked to learn that they had not, in fact, been deleted, but were being shared by hundreds of anonymous users across the internet.

“I was devastated,” Bethany told Jezebel. “I was really angry at my ex- boyfriend, because I thought this was something he did on purpose.”

It turns out that her ex hadn’t deleted the photos—but he hadn’t been the one to post them publicly, either. Instead, he put them on Dropbox, in an account that was eventually hacked by an unknown party in Florida. The images were put on Tumblr, where users went to the trouble of editing the face of Bethany’s ex out of the roughly seven images, but also adding “a screenshot of my Facebook page, my full name, and it was like, ‘contact this girl, she’s a whore,’” Bethany said. “It was all about me.”

Bethany tried desperately to contact Tumblr to get the photos and videos taken down from the site, but never received response. She finally enlisted the help of a lawyer who specializes in cases like hers, and he eventually succeeded in having the content removed—though not until a month later.

Now, Bethany is in the process of seeking charges—but not against her ex, who had no involvement in the case. Instead, her pursuit is focused on the hundreds of Tumblr users who reposted the images. As it stands now, Google has turned over the information of dozens of the users, some of whom have agreed to settle. The original hacker, however, has not been caught.

“That person is not even feeling any repercussions for their actions,” Bethany said. “They’re still out there, and they can still continue to post these pictures and videos.”

Lancman’s legislation, however, wouldn’t protect women in situations like Bethany’s, because it comes with a clause that advocates say undercuts its effectiveness: In order to be considered a crime, perpetrators must have shared an image “without the depicted individual’s consent, with the intent to cause economic, physical or substantial emotional harm.”

The “intent” portion of the bill is a thorn in the shoe of advocates like Dr. Mary Anne Franks, a law professor and the Legislative & Tech Policy Director of the Cyber Civil Rights Initiative, who say that such hard-to-prove motivations are a calculated attempt to cripple the legislation by powerful interests like the ACLU and, oddly, the Motion Picture Association of America. In well-written laws, such as those on the books in Illinois and New Jersey, the focus centers on violation of privacy, despite the better efforts of those groups.

The ACLU argues that nonconsensual pornography is protected by the 1st Amendment. (The NYCLU, the ACLU’s local chapter, declined to comment. David Horowitz, of the Media Coalition, a group focused on the First Amendment, said it does not take issue with the bill because it is “appropriately narrow,” and focuses on intent.) But Franks thinks that the freedom of speech argument is just a PR-friendly ploy designed to cover up both groups’ real interests: Money.

“My experience with state legislators has been that they actually start out writing pretty good bills, and they end up amending them in these ways after pressure by these various groups,” Franks said. “I strongly suspect a lot of that has to do with their ties to industry,” she said.

The MPAA, for its part, has its own convoluted interests to look after. Less clear, however, is the motivation behind the ACLU’s position. On the surface, it would appear that the ACLU wants to protect free speech. But the organization’s commitment to the 1st Amendment tends to ebb and flow depending on the case—it does, for example, support laws that criminalize the disclosure of social security numbers and geolocations data.

“Of course the way they articulate that is in terms of the 1st Amendment and free speech. But a more cynical observer might say that’s not so much about speech as it is about profit,” Franks said.

Neither Franks nor Bethany’s attorney—who specializes in revenge porn—are impressed by the bill going to council vote. Both said that as long as a case hinges on “intent,” it will be incredibly hard to prosecute. Were the hundreds of users who shared Bethany’s images specifically seeking to destroy her personally, or were they just mindlessly sharing content they found online? And how can that be proved in court? After all, the vast majority of revenge porn cases are not like the ones Lancman has in mind, but more akin to what happened to her. According to a 2017 study from the Cyber Civil Rights Initiative, only 11 percent of perpetrators shared lewd images with the specific intention of hurting their victims. Seventy nine percent said they’d shared the images without the goal of causing harm, and an additional 16 percent said they did it because it was fun or funny.

Lancman’s policy director, Rachel Kagan, said New York City’s bill is not attempting to cover cases like Bethany’s.

“This is more about pictures that were taken consensually between partners, with one partner choosing to post it without the consent of the other,” she said.

But as long as the “intent to harm” clause remains intact, Franks said the legislation will be a success in name only.

“If you make causing distress or emotional harm an element of the crime, that means you have to prove it beyond a reasonable doubt at a criminal trial,” she said. “It would definitely be a bar to prosecution.”

Correction: A previous version of this post attributed Horowitz’s quote to an “MPAA spokesperson.” Horowitz is not a spokesperson for the MPAA. Jezebel regrets this error.

 
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