Should Congress criminalize online “revenge pornography”?

1-Blind-JusticeAShould “revenge porn” be made a crime? In California, revenge porn could soon be illegal.

This weekend, in an op-ed for CNN.com, University of Maryland law professor Danielle Citron argues that Congress and other states in the union also should move to criminalize sharing nude pictures of a person without that person’s consent.

“New Jersey is the only state to make it a felony to disclose a person’s nude or partially nude images without that person’s consent,” she writes. “The New Jersey statute is a helpful model for states like California that are considering proposals to criminalize revenge porn. Congress should amend the federal cyberstalking law, 18 U.S.C. § 2261A, to cover the use of any interactive computer service to produce or disclose a sexually graphic visual depiction of an individual without that individual’s consent.”

Citron argues that that, given the profound effects upon someone’s personal and professional life in the schools, workplaces and communities they inhabit “offline,” criminalizing this online action is a necessary curb on the damage it can do. She makes a strong case that the U.S. Code should catch up to the pace of technological change.

We’re several years past the time the world crossed a Rubicon, with respect to the ability to share embarrassing images of one another. The global adoption of cheap camera phones, smartphones, social networks, search engines and wireless Internet access has created a tidal wave of disruptions across industries, governments and nations. Taking pictures with the world has been made trivially easy by those technologies, a capability that can capture both our best and worst moments.

When combined with the capacity to share those images with the rest of humanity in an instant, billions of people now wield great power in their back pockets. Whether they uphold the responsibility that comes with it is in question, given what history shows us of humans acting badly to those who have less power in society. The power to publicize and shame others is not equally distributed, given the expense of devices, data, and unequal access between the sexes.

In her op-ed, Citron anticipates the First Amendment concerns of organizations like the ACLU, arguing that it’s possible to craft sufficient limits into legislation — again, using New Jersey’s law as a model — that will enable the United States to preserve constitutional protections for free speech online.

“First Amendment protections are less rigorous for purely private matters because the threat of liability would not risk chilling the meaningful exchange of ideas,” writes Citron.

“Listeners and speakers have no legitimate interest in nude photos or sex tapes published without the subjects’ permission. That online users can claim a prurient interest in viewing sexual images does not transform them into a matter of legitimate public concern. Nonconsensual pornography lacks First Amendment value as a historical matter, and could be understood as categorically unprotected as obscenity. Although the Court’s obscenity doctrine has developed along different lines with distinct justifications, nonconsensual pornography can be seen as part of obscenity’s long tradition of proscription.”

The American Civil Liberties Union opposes the California legislation and the Electronic Frontier Foundation has expressed concerns with how broadly it has been drafted.

Legal precision in how legislatures make revenge porn a criminal offense really will matter here, given both existing statutes and the number of entities that are involved in the act, from the person who took the image to the site that hosts it to the people who spread it.

Making anyone but the original person who broke the trust of another by uploading the picture culpable would run up against Section 230 of the United States Communications Decency Act, which provides “intermediary liability,” protecting online platforms from being held liable for user-generated content shared on them.

As more people gain the ability to take, store and share digital images, however, improving systems that govern non-consensual surveillance and distribution looks precisely like the kind of thorny problem that our elected representatives should grapple with in the 21st century.

Societies around the world will need to find answers that reconcile online civil rights with longstanding constitutional protections. The way the United States handles the issue could be a model for other states to consider — or not, if a dysfunctional Congress proves unable to enact effective legislation, a scenario that unfortunately seems all too likely over the next year.

One thought on “Should Congress criminalize online “revenge pornography”?

  1. Many people do consent to having these pictures taken. Many even consent to having them published. We may get revenge porn, but it could be by somebody who consented, and later claims they didn’t, just to get back at the boyfriend who cheated….

    How will we prove it was not consent? Who decides what “porn” is? If I took the picture while we were dating, do I own the copyright? If I took the picture of a stranger at a concert where they took off their top, is that not consent? If my computer was hacked, and your photos put on a website, am I responsible?

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