Revenge porn, that internet scourge that has seen a recent onslaught of legislation and prosecutions, is about to meet its biggest challenge yet. On Thursday, Rep. Jackie Speier will announce a much-anticipated and long-delayed federal bill to outlaw nonconsensual pornography in the United States. This landmark legislation would make the distribution of such images a crime punishable by a fine or up to five years in prison.
The bill, which addresses the sharing of nude or sexually explicit images of an identifiable person with “reckless disregard for the person’s lack of consent to the distribution,” is being celebrated by victims of revenge porn. But several privacy experts and civil liberties activists who reviewed the text at Vocativ’s request say it is too broadly written and could violate the First Amendment. They warn that it could inappropriately apply to images of everything from babies at bath time to breastfeeding moms. It could also restrict imagery in mainstream news publications and X-rated Tumblrs alike, they argue.
“We understand the very real privacy interests that are motivating this bill,” said Emma Llansó of The Center for Democracy & Technology (CDT). “Unfortunately, it is broad and lacking in some of the key protections that would be necessary to ensure that a law like this wouldn’t have an unintended effect of chilling constitutionally protected speech.”
The past several years have seen a wave of legislation targeting revenge porn, a term that typically refers to cases of spurned lovers sharing private images, but is sometimes applied more broadly to any kind of explicit imagery shared without permission. Thirty-four states have enacted such laws, which leaves roughly a third without any laws specifically targeting nonconsensual pornography, and revenge porn activists say a federal law is desperately needed to close that gap. Meanwhile, groups like the American Civil Liberties Union (ACLU) have warned that such legislation, if too broadly written, could having a chilling effect on free speech.
The bill has encountered delays, in part because of attempts to address those concerns. Mary Anne Franks, a professor at the University of Miami School of Law who helped draft the bill, says many meetings were held with constitutional scholars, civil liberties groups, and privacy experts, most of whom she says were left without “serious reservations” about the text. That’s because the bill limits its scope by providing several exceptions—for example, visuals of public nudity or sexual behavior and images that are in “the bona fide public interest.” (In the latter case, it might mean that a hacked celebrity sex tape is outlawed, unless it is relevant to political interests—say, the president appears in it.)
It also addresses Section 230 of the Communication Decency Act, which is often considered one of the most important protectors of freedom of expression online and shields websites from legal responsibility for user-generated content (status updates on Facebook, for example). The bill states that it would not apply to a “provider of an interactive computer service” unless it “intentionally promotes or solicits content that it knows to be in violation” of the legislation. In other words, a site like Twitter wouldn’t be responsible for Joe Schmo’s revenge porn tweet unless CEO Jack Dorsey in some way solicited it.
Eugene Volokh, a professor at UCLA School of Law, told Vocativ in an email that he is “not a fan of most privacy-based speech restrictions,” but said “this law seems quite narrow, and pretty clearly defined.” Similarly, Neil Richards, a First Amendment scholar and law professor at Washington University, underscored the importance of revenge porn laws being narrow enough so they aren’t “used as tools of censorship that threaten our commitment to free expression, including sexually-explicit expression,” but said, “I think on balance, this is a very well-drafted law.”
However, spokespeople from three of the activist organizations with whom the bill’s drafters consulted, including the CDT, the ACLU, and the Electronic Frontier Foundation (EFF), argue that it is still overly broad. “It attempts to balance First Amendment rights and privacy rights, and I think it doesn’t quite get there,” said Michael W. Macleod-Ball, First Amendment counsel at the ACLU.
For one, he says, the bill would need to include a requirement of malice in order to pass muster—meaning, prosecutors would have to prove that the person sharing the imagery intended harm to the depicted person. “There is no intent standard,” he said. “People who have innocent photos or depictions, it still subjects them to criminalization of their protected free speech activities.”
He gives the examples of parents sharing naked baby photos with family members or the publication of important historical images featuring nudity. While the bill does exclude images that are in the public interest, which might apply in the latter case, he says it is too vaguely defined. “As long as you have this uncertainty with the exceptions, you run the risk of an overzealous prosecutor using this to make a point against a reporter or someone else who circulates these images,” he argued.
The bill’s supporters argue that a malice standard would be too limiting, though. “The practical effect of this would be to let the vast majority of offenders off the hook–especially those motivated by greed or voyeurism instead of harassment,” said Franks in an email. “To do what the ACLU demands would be, first, to treat intimate privacy as somehow less deserving of protection than financial, medical, or even geolocation privacy, and second, to allow a vast range of offenders–including revenge porn site owners profiting from the sexual humiliation of strangers and rapists broadcasting their assaults for entertainment—to act with impunity.”
Macleod-Ball also argues that the bill would need to address the expectation of privacy, which is relevant beyond whether or not a photo is taken in public. He gives the example of a man who sends a photo of his penis to a woman online with the intent to harass her. What if she then spreads that image to, as he puts it, “share her outrage”?” This is a very real phenomenon: Take the woman whowent viral this summer by sharing an unsolicited dick pic an internet stranger sent to her, or the artist who turned unwanted penis shots into an art exhibit. Macleod-Ball says such a woman could be subject to prosecution under this bill, unless, perhaps, it required an expectation of privacy and the sharing of an unsolicited penis photo was deemed to not have the expectation of privacy.
Llansó, of The Center for Democracy & Technology, takes issue with the fact that the bill goes beyond targeting the original uploader of an image. “The way the bill is structured, it appears to apply not only to a person who initially uploads a photo and knows they have no consent to distribute, but also to anyone who reposts or retweets or reblogs or otherwise shares that image with, as the bill says, reckless disregard,” she said. “The idea that people generally using the web will be able to anticipate the mindset of a person depicted in an image is just difficult if not impossible to achieve.”
She added, “There are many explicit images available online and I think it’s fair to say it’s a difficult call which one of those were initially consensually posted online.”
In this sense, the bill could apply to someone who reposts an unsourced erotic photograph on their X-rated Tumblr. Is it reckless disregard to post it without verifying the consent of the person depicted in it, or is it only reckless if that Tumblr blogger knows that the person did not consent? Llansó says it would be up to the court to decide. She also notes that while the bill requires the person in the image be identifiable, either in the visual itself or in accompanying text, it leaves room for interpretation as to whether that means that they are identifiable just to family and friends, or to total strangers as well.
Lee Tien, a senior staff attorney at EFF, agrees that the bill “raises some serious constitutional concerns” and points out that reckless disregard for consent could be construed in some surprising ways. “I might have an image of a nude woman from a book and then post it to some blog,” he said. “That might violate this law if the woman didn’t consent to my posting it online.”
Macleod-Ball said it’s possible, though, to draft a constitutional federal revenge porn bill. “There are legitimate privacy interests that need to be protected, but there are also legitimate free speech interests that need to be protected,” he said. “Figuring out how to balance those and still deal with this very important problem is the challenge.”
The revenge porn victims supporting the law see things differently. In 2010, Annmarie Chiarini’s ex-boyfriend posted naked images of her to the internet and she was told by police that nothing could be done. Chiarini reached such a point of desperation that she attempted suicide, but she survived and went on to work with the Cyber Civil Rights Initiative to counsel more than 2,000 revenge porn victims. “With every case, I heard the same helplessness I felt when I was victimized—there are no laws to protect victims,” she said. “This bill will provide victims with the protection they deserve.”
Her ex was never punished or even approached by law enforcement, and she long ago let go of the possibility. But when asked whether she thinks he would have shared those images if a federal law has been in place, she is firm. “Absolutely not.”