New Federal Legislation Could Take a Nip Out of 'Revenge Porn'

Internet activists worry that forthcoming proposal could ruin free speech, along with bitter exs.

Maryland Del. Jon Cardin, a Democrat, and policy advocates announce a bill to ban "revenge porn" during a news conference on Oct. 30, 2013, in Baltimore. State laws cannot force the take-down of online content, so advocates plan to introduce federal legislation.
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Activists seeking to criminalize "revenge porn" say they are working with a member of Congress to prepare federal legislation that would force Internet companies to take down the sometimes X-rated content.

The proposed law has not be finalized and its sponsor does not wish to be identified yet, according to University of Miami law professor Mary Anne Franks, who is helping draft the bill.

"We're going back and forth and actually writing the law with them," said Franks, a board member of the Cyber Civil Rights Initiative, which was founded by "revenge porn" victim Holly Jacobs.

"Revenge porn" includes images and videos posted online by former significant others and features such items as nude photos, salacious emails and lewd texts. The content is often posted on niche websites, sometimes with the victim's personal information, including their name, workplace and contact information.

The forthcoming bill would make posting such material without the subject's consent a federal crime punishable by up to 2 years in prison and/or a fine.

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Websites that specialize in revenge pornography cannot currently be forced by state law to remove 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.

"A lot of companies are under the impression they can't be touched by state criminal laws," Franks said, because "Section 230 trumps any state criminal law."

The Communications Decency Act, however, doesn't trump federal criminal law, she said, pointing to child pornography.

"The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations."

"Hopefully," she said, "we would develop a similar take-down notice regime that we see in a copyright context, which means that anytime a victim becomes aware that [their] picture is on one of these websites without their consent, [they] can notify the website, [they] can notify Google, [they] could notify all the people inadvertently helping the image get shown... that this is nonconsensual material and needs to be taken down."

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That concerns some advocates of Internet freedom.

"Going after intermediaries is a really bad idea," says Matt Zimmerman, a senior staff attorney at the Electronic Frontier Foundation. "The entire speech ecosystem ends up suffering because those service providers [would] decide what people can and cannot post, even if it isn't illegal."

Zimmerman says EFF doesn't have any sympathy for posters of the offensive content, but considers criminal law a "dangerous" way to pursue culprits.

"Frequently, almost inevitably, statutes that try to do this type of thing overreach," he says. "The concern is that they're going to shrink the universe of speech that's available online."

Behaving in their best corporate interests, Zimmerman says, Internet companies would likely respond to such a law by removing content any time there's a complaint, to reduce their liability and to save time.

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"As a societal matter we don't want to create statutes that will discourage people from engaging in protected activities," he says. "We have been very consistent with the notion that the service providers should not be put in that middle. When someone is harmed, the focus should be on the person who engaged in the bad behavior."

Zimmerman is also concerned about how broad the definition of "revenge porn" might be in any proposed law, but says he could personally support an increase in civil liability against people who post it.

Franks says she's seeking input on the federal legislation from EFF, the American Civil Liberties Union, large companies and others likely to have concerns. The nationwide ban would likely leave foreign websites used by Americans untouched, but Americans operating sites that are supposedly based abroad would be subject to penalties.