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Without Her Consent: Why Criminalization is the Appropriate Response to the


Gendered Expressions of Revenge Porn

Nakia D. Hansen, JD


According to a 2013 Love, Relationships, and Technology survey by online
security provider McAfee, 50 percent of Americans surveyed have shared personal or
intimate images and/or videos with loved ones or friends. Moreover, 28 percent of
respondents have regretted sending such content and 32 percent have asked that the
personal images be deleted. The McAfee study further found that 1 in 10 people have been
threatened by an ex that their private images would be posted online and in nearly 60
percent of those cases, the threats were carried out
i
.
This practice of sharing intimate photos and videos is becoming increasingly
ubiquitous in our culture, particularly among young people and those with access to digital
cameras, mobile phones, and social media.
ii
Unfortunately, hackers, disgruntled exes, and
others with a vindictive agenda have taken this private media and made it public with the
intent to hurt, shame, discredit, and/or harass the subject,
iii
often inflicting great harm with
a single click.
While the wisdom of sharing an intimate photo of ones self, also known as a
selfie,
iv
is debatable, the practice is perfectly legal among adults. However, at the time of
this writing, the practice of sharing intimate media beyond its intended recipient (often
with the intent to cause harm) commonly referred to as revenge porn or involuntary
porn
v
is illegal in just two states, California and New Jersey. Revenge porn is an
increasingly common violation of privacy, resulting in negative and long-lasting
ramifications for its victims.
2
While it might seem that privacy law should provide a sufficient cause of action to
deter or punish perpetrators of revenge porn, I argue that given the influence of
institutional sexism
vi
on our cultural notions of decency, privacy law fails to offer
substantial protection to victims. Instead, it is the criminalization of revenge porn that will
bring us closer to securing justice for those harmed. In this paper, I first seek to establish
the scope of revenge porn harms and why it is a problem worthy of serious consideration.
Then, I explore how the principles undergirding privacy law might struggle to provide
redress for victims of revenge porn in a society where sexism influences norms. What
follows is a discussion of existing legal remedies that might be used to deter and/or punish
perpetrators of revenge porn and their shortcomings in addressing the problem. Finally, I
turn to existing and proposed legislation in response to revenge porn and the push to
criminalize the practice on a federal level.

THE SCOPE OF REVENGE PORN HARMS
As stated above, revenge porn is generally the practice of sharing intimate media
beyond its intended recipient through social media sites, SMS/texting, and voyeuristic sites
devoted to the posting and viewing of such content. According to the advocacy site
EndRevengePorn.org, the term is defined more precisely as,
A form of sexual assault that involves the distribution of nude/sexually
explicit photos and/or videos of an individual without their consent. Revenge
porn, sometimes called cyber-rape or non-consensual pornography, is
usually posted by a scorned ex-lover or friend, in order to seek revenge after
a relationship has gone sour.
vii


A recent article estimates that there are over 40 sites that are wholly or partially devoted to
the posting of revenge porn,
viii
the success of which indicates the popularity of the subject
3
matter (site proprietors reportedly earn tens if not hundreds of thousands of dollars
through advertising, subscription, and removal schemes.
ix
). Many of these sites are also
involved in doxing, the act of retrieving and publishing an individuals personally
identifiable information (PII),
x
which can lead to a host of harms including blackmail,
identity theft, and harassment.
xi

The story of Dr. Holly Jacobs, founder of EndRevengePorn.com tells of both objective
and subjective harms she suffered when she became a victim of revenge porn. According to
Jacobs, her ex-boyfriend went on a photo-posting spree he hacked into her Facebook
account, replacing her profile photo with explicit images, he sent emails to her employers
containing nude photos, and spread additional images via revenge porn sites.
xii
Visitors to
those sites subsequently harassed Jacobs and their prolonged abuse had a negative impact
on both her personal life and career. She even took a new name (Jacobs is her new
identity). Jacobs details the extent of her efforts to escape the harassment:
I created new email accounts, took down all of my social media profiles, and
put a post-it over my webcam. I changed jobs and had a couple very
uncomfortable conversations with my professors involving tears and, for one
of them, falling out of a chair and twisting my ankle. I paid $500 to legally
change my name. MY NAME. This was agonizing.
xiii


There is no doubt that men are victimized by revenge porn as well but since the vast
majority of victims are female at least 70 percent
xiv
this paper focuses on the particular
harms experienced by female women. Understanding revenge porn motivation and
resulting harms requires a discussion of gender politics. Often times, the women portrayed
in revenge porn posts are described as sluts or whores, dirty, or just plain deserving of
abuse. Given our societal depreciation for expressions of female sexuality (for and by the
male gaze) and appreciation for male expressions of sexuality (the archetypical stud,
4
player, playboy, etc.), the shaming of women through intimate photos is likely both a cause
and effect of differential societal norms around sex. Therefore, the dissemination and
distribution of revenge porn risks worsening tenacious social mores that treat those who
engage in sex differently based upon gender, and it may cause victims to internalize those
norms.
xv

A cursory glance at the comments section of revenge porn articles or the vicious
tweets, letters, and actions directed toward victims and advocates who take a public stand
against revenge porn
xvi
reflects a belief that the person who takes a selfie or poses for an
intimate photo is less than deserving of sympathy when faced with the consequences of
those actions. University of Miami Professor Mary Ann Franks recently linked revenge porn
victim-blaming to the larger issue of rape culture:
When we say, What was she doing giving out this picture? what were really
saying is if youre sexual with one person, society is entitled to treat you as
sexual for all purposes Were telling women and girls that revenge porn is
justified punishment for giving a sexy picture to a trusted partner, and thats
exactly the same thing as telling women and girls that rape is justified
punishment for drinking or wearing a short skirt.
xvii


This victim-blaming overlooks the real and lasting harm caused by such a violation of trust.
Objective privacy harms - those involving the forced or unanticipated use of
information about a person against that person
xviii
occur when PII is used in an action
against a person such as denying or terminating employment, forcing them out of school,
and damaging personal relationships. Subjective harms include intrusion upon intimacy
and gendered attacks or slut-shaming.
xix
Revenge porn threatens the critical need to
maintain the boundaries of intimate, highly personal conduct boundaries that can be
crossed only with the consent of each participant. Intimate relationships are where we
explore sensitive, even secret aspects of ourselves. A key component of that exploration is
5
control over the decision to whom to expose those characteristics.
xx
Revenge porn and
other non-consensual distribution of intimate content deprives individuals of that decision.
Without the reasonable assurance of privacy within our relationships, we risk distancing
ourselves from fully experiencing intimacy.
xxi

Because revenge porn seeks to demoralize, debase, and shame women on social,
sexual, and professional levels, its victims have sought redress from the individuals
posting the content and the sites that host the same. Unfortunately, in all but two states
revenge porn is legal. Until more state legislation and possibly a federal law are available to
combat revenge porn specifically, many look to the privacy torts for relief. However, these
civil remedies may prove insufficient where sexist norms persist.

PRIVACY AND THE BOUNDARIES OF DECENCY
Warren and Brandeis suggested that privacy is a right of inviolate
personality,
xxii
recognizing that each person must be able to determine how his or her
information will be utilized or circulated, as such is essential to maintaining social
relationships and personal freedom.
xxiii
The invasion of privacy tort is commonly
understood to have four branches: intrusion, public disclosure of private facts,
appropriation, and false light,
xxiv
the first two being most likely to have a bearing on
revenge porn cases. According to the second Restatement of Torts (S652B),
One who intentionally intrudes, physically or otherwise, upon the solitude or
seclusion of another or his private affairs or concerns, is subject to liability to
the other for invasion of his privacy, if the intrusion would be highly
offensive to a reasonable person.
xxv


The key concept in 652B is that of the reasonable person the representative of the
normal standard of community behavior, embodying the general level of moral judgment
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of the community.
xxvi
Thus, what makes invasion of privacy an actionable claim is not so
much the act of intruding, physically or otherwise, but the fact that such an intrusion is
offensive to the moral judgment of the community. Put another way, "it is only where [an]
intrusion has gone beyond the limits of decency that liability accrues.
xxvii
It would seem
that where our concept of decency is formed within a sexist culture, revenge porn claims
are unlikely to meet the standard for invasion of privacy.
In Daily Times Democrat v. Graham,
xxviii
the district court ruled in favor of Plaintiff
Graham whose photo depicting her dress blown upward (revealing her undergarments)
was taken and published on the front page by the defendant newspaper. The Alabama
Supreme Court reasoned that although Graham was in a public place when the photo was
taken, publication of the photo was an invasion of privacy because a person of reasonable
sensitivity would find the publication of such a photo to be an embarrassing intrusion. It is
easy to see how the Graham court could come to such a conclusion because common
standards of decency would deem a photograph of ones underwear on the front page of a
newspaper to be an embarrassment. However, in the case of revenge porn the requisite
level of moral outrage might not be so easily reached.
Where one may release (in part) some of her privacy rights by sharing intimate
photos, the release doesnt necessarily give the recipient the right to publish the photo any
further. But if the moral judgment of the community as reflected through the reasonable
person standard weighs against the person photographed, then theres a possibility that
the publishing of the photo wont be deemed offensive enough to be considered an
intrusion.
7
Another relevant invasion of privacy branch is public disclosure of private facts, also
known as publicity given to private life in the second Restatement of Torts:
One who gives publicity to a matter concerning the private life of another is
subject to liability to the other for invasion of his privacy, if the matter
publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
xxix

Disclosure is concerned with the publication of sensitive, private information of no
legitimate public concern. In regards to revenge porn there may be some pushback as to
how private the photos are if they were shared with another person but such a limited
reading of the word private would be incorrect. Private as its to be understood for
disclosure purposes is highly dependent on the context of the communicative act by which
the information was revealed
xxx
and not merely by its content or the extent upon which it
had been previously disseminated. Thus in addition to the reasonable person standard,
disclosure also turns on community standards/norms of appropriateness in this case
whether the publication comports with or wantonly disregards.
These privacy torts present a particular matter of concern where the issue of
consent is often raised. To some degree, the extent to which one has consented willingly
placed herself or her information in public can be seen to diminish the claim that there
was an intrusion or improper disclosure. Many people feel that if a woman shares an
intimate photo, even within the confines of a trusting relationship, she should expect that
the photo will be passed on to strangers and she impliedly consented to its
publication/dissemination. In our society, this judgment is most often reserved for women
and with dangerous consequences, since indifference and hostility to womens consent
doesnt just drive revenge porn; it is also at the heart of sexual harassment and rape.
xxxi

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The question of whether a womans privacy right has been violated in a revenge
porn case can focus more on her implied consent and participation and less on the actions
of the person who distributed the intimate content. This creates a false equivalency
between creators and distributors of intimate content that mistakenly equates privacy to
secrecy. If privacy simply meant secrecy, thered be no limit to the amount of intimate life
details that could be exposed. We willingly reveal personal information about our health,
finances, and relationships to everyone ranging from faceless customer service agents over
the phone to health care professionals. No one is held personally accountable if those
details are subsequently publicized. Where the details are of an intimate nature, however,
the gendered double standard sends a victim-blaming message that womens participation
in the modern mating ritual of sharing intimate content, not the action of the distributors, is
the problem.
For years, victim-blaming has been employed against victims of domestic violence,
sexual harassment, cyber-harassment, and now revenge porn to relieve the perpetrator of
fault. Where society [has] minimized the culpability of the abusers and maximized the
responsibility of victims to justify those practices,
xxxii
(the law hasnt always taken the high
road).
xxxiii
Both intrusion and disclosure rely upon prevailing social norms and at present,
these norms suggest that women who violate prescriptive gender roles [online] are
disproportionately targeted for harassment.
xxxiv
Furthermore, neither cause of action
depends upon an objective measure of when disclosures ought to be subject to liability.
Considering the ways in which womens participation in the creation and sharing of
intimate photos are scrutinized
xxxv
, and the ways in which victim-blaming is employed to
discredit real claims of cyber abuse, privacy torts may not offer the best, most consistent
9
route to deter and/or punish perpetrators of revenge porn, leaving victims to seek out
alternative legal means.

EXISTING LEGAL REMEDIES
Beyond the privacy torts discussed above, other laws may provide a path to justice
for revenge porn victims such as intentional infliction of emotional distress, criminal
harassment, and copyright infringement, to name a few. Unfortunately, several barriers
stand in the way of success on these claims: few people have the means to pursue a civil
case; websites that host revenge porn are generally protected by Section 230 of the
Communications Decency Act (CDA)
xxxvi
and little may be gained from suing individual
perpetrators; certain details may be difficult to prove, such as intent, thereby weakening
the merits of the case; and understandably, some victims may be dissuaded from pursuing
a lawsuit that might attract additional attention to the embarrassing photographs that lie at
the center of their claims.
At first glance, intentional inflection of emotional distress (IIED) looks to be a viable
option for going after perpetrators of revenge porn. IIED requires a showing that a
defendant has, by means of extreme and outrageous conduct, intentionally caused severe
emotional distress to the plaintiff.
xxxvii
Any analysis of IIED must weigh significantly the
element of outrageousness which, like the privacy torts discussed earlier, is subjective
and reflective of social norms.
xxxviii
Generally, this lack of precision around the term
outrageous is good thing because it allows the courts weed out trivial lawsuits and
instead focus on the most egregious breaches. For victims of revenge porn, allowing social
norms to dictate what is or is not outrageous might result in less desirable outcomes.
10
Most states have criminal harassment statutes that cover electronic
communications. Typically, these are referred to as cyberstalking or cyberharassment.
While a victim may bring one of these harassment charges, such claims will only succeed in
limited circumstances.
xxxix
Cyberharassment laws typically apply only where theres a
pattern of threatening or malicious behavior. Cyberstalking ups the ante, requiring a
credible threat. With revenge porn, although one post can result in an image being shared a
countless number of times and the victim being taunted by many individuals, its unlikely
that the initial posting rises to the level of cyberharassment or cyberstalking as defined by
most state statutes.
xl

Copyright infringement has been raised as a possible means for victims to have their
photographs removed from the web. Because around 80% of revenge porn victims took the
pictures in question themselves
xli
, they have the legal rights to those photos. Under the
Digital Millennium Copyright Act (DCMA),
xlii
victims can submit a DMCA take-down request
to offending websites that are using their photos without consent. While this is a viable
option for victims, especially because Section 230 of the CDA does not protect websites
from copyright infringement claims, this option does nothing to help the women who have
no rights in the images since they did not take them. Furthermore, copyright claims do
nothing to deter or punish the perpetrators

LEGISLATIVE RESPONSES TO REVENGE PORN
Advocates for the criminalization of revenge porn recognize that the law can play an
important role as a force of moral suasion, simultaneously clarifying and drawing
attention to, the behavior it prohibits.
xliii
It is important then that we recognize and name
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revenge porn as a crime because that is the most accurate and principled characterization
of its harm.
xliv
If we regard revenge porn as a nonconsensual sex act (and we should), then
it shouldnt matter whether the act is inflicted on ones physical body (rape, sexual assault)
or perpetrated via the web.
The frustrated efforts of victims to find justice through privacy torts or other civil
and criminal laws along with the increased attention to the issue in the media and the
emergence of several grassroots groups dedicated to raising awareness has led to some
proposals in state legislatures to criminalize revenge porn. As previously stated, both New
Jersey and California are the only two states at the time of this writing to have laws against
revenge porn.
State Legislation
In 2003, New Jersey enacted the first law that directly impacted revenge porn by
making it an illegal to reproduce nude or sexual images of another person without their
permission and also criminalized the dissemination, distribution, and selling of those
photos or videos.
xlv
New Jersey lawmakers attempted to strengthen the penalties under the
states invasion of privacy law with Senate Bill 460 in 2010 after a Rutgers University
student, Tyler Clementi, committed suicide after his roommate secretly filmed and posted
online video of Clementi engaged in sexual intercourse.
xlvi
SB460 was introduced in the
Senate in January 2012 and last referred to the Senate Judiciary Committee.
xlvii
New
Jerseys law remains a model for other states considering such legislation.
Californias Senate Bill 255 became law in October 2013. Amending Section 647 of
the states Penal Code, the new disorderly conduct law states in relevant part,
(4) (A) Any person who photographs or records by any means the image of
the intimate body part or parts of another identifiable person, under
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circumstances where the parties agree or understand that the image shall
remain private, and the person subsequently distributes the image taken,
with the intent to cause serious emotional distress, and the depicted person
suffers serious emotional distress.
xlviii


A violation of the new law qualifies as a misdemeanor carrying up to six months in jail or a
$1,000 fine.
xlix
State Senator Anthony Cannella, the bills sponsor, argued for the bill by
saying technology has outpaced the law, stating in a press release that "[u]ntil now, there
was no tool for law enforcement to protect victims."
l

Critics of the law have cited the laws swiss cheese protections namely that it
doesnt cover selfies, doesnt apply to redistributors, revenge porn websites, or hackers,
and only criminalizes IIED, which may be difficult to prove.
li
California appears to be taking
the matter of revenge porn very seriously, however, since Sen. Cannella recently shared
plans to propose a bill in the upcoming session to close a major loophole in the states law
by extending the prohibition to include selfies.
lii
Californias attorney general, Kamala
Harris, also took a major step in the fight against revenge porn on December 10, 2013 with
the arrest of the alleged owner and operator of a revenge porn website who facilitated the
posting of more than 10,000 sexually explicit photos and extorted victims for as much as
$350 each to remove the illicit content.
liii
Harris end run around Section 230 of the CDA
coupled with Cannellas efforts to strengthen the states revenge porn statute make
California the leader in protecting victims of revenge porn.
Other state lawmakers are recognizing the harm caused by revenge porn and
believe that it can best be remedied through legislation. New York, Wisconsin, Maryland,
and Florida are just a few of the states currently considering revenge porn statutes and all
of them see criminalization as key to deterrence and punishment.
13
In 2013, New York lawmakers proposed three different bills aimed at criminalizing
revenge porn in the wake of Californias law. Current New York unlawful surveillance law
only covers photographs taken without consent.
liv
The proposed legislation would make it
a felony to disseminate lewd images or sexts of another person without his or her consent
even if the images are so-called selfies.
lv
Another bill in Albany seeks to boost civil
causes of action but most lawmakers speaking out on the issue feel that civil remedies dont
go far enough. Criminalization is preferable to civil suits by victims because civil suits do
not deter those who upload or disclose new images after a civil suit has ended, said State
Assemblyman Edward C. Braunstein. Moreover, the websites that distribute non-
consensual pornography are given broad immunity for civil liability under federal law
through the Communications Decency Act. Therefore, criminalizing disclosure of these
photos may prevent websites from benefiting from the harmful images.
lvi

Current Wisconsin law only offers protection to individuals who did not know or
consent to an intimate image being taken.
lvii
Acknowledging the reality that many revenge
porn cases include photographs or videos that were taken with the victims knowledge or
by the victim herself, Wisconsin lawmakers proposed Assembly Bill 462 in October 2013 to
make the nonconsensual distribution of nude and sexually explicit images illegal.
lviii
The bill
passed the state Assembly in December and at the time of this writing is off to the state
Senate. We're trying to head this off, said the bills sponsor John Spiros, What this does is
say, if you do that, it's a crime."
lix

In an effort to both deter and punish disseminators, a law to criminalize revenge
porn was proposed in October 2013 by Jon S. Cardin, Maryland Delegate and candidate for
state Attorney General. According to a statement released by Cardin, it is not acceptable to
14
ruin someone's life and then cower behind the anonymity of the Internet. this law will find
these sexual predators, bring them to justice and make everyone think twice before hitting
that "send" button.
lx
Maryland law currently offers protection for stalking and harassment.
Cardins proposal would make cyber-sexual assault a crime punishable by up to five years
in prison, a $25,000 fine, or both.
lxi

Floridas attempt to criminalize revenge porn was spurred by concerns of law
enforcement officers dealing with victims. In early 2013, the Brevard County Sherriffs
Office proposed a bill to the Florida state legislature that makes the distribution of revenge
porn a third degree felony, punishable by up to five years in prison.
lxii
I got asked not long
ago do I believe thats the right level of crime for it, said Brevard Sheriff Wayne Ivey. I
absolutely do.
lxiii
State Senator David Simmons recently filed SB 532 that not only
prohibits an individual from disclosing intimate images with intent to harass, but would
also require anyone convicted of such offense be prohibited by court order from contacting
the victim. The bill is currently with the Appropriations Subcommittee on Criminal and
Civil Justice.
lxiv

An earlier version of Simmons bill died in Appropriations, presumably due to
criticisms that it was too broadly drawn.
lxv
Opponents of efforts to criminalize revenge
porn raise several objections, including that the legislation is too broad, which must be
addressed if any of the new or proposed laws are to succeed. Not only do weak laws fail to
provide justice to victims, they burden the courts and erode public trust.
Potential Issues With Revenge Porn Laws
15
A valid and important criticism of revenge porn legislation is that statutes might not
stand up to challenges based on free speech grounds. In its objection to an early version of
Californias law, the American Civil Liberties Union (ACLU) stated,
The posting of otherwise lawful speech or images even if offensive or
emotionally distressing is constitutionally protected. The speech must
constitute a true threat or violate another otherwise lawful criminal law,
such as stalking or harassment statute, in order to be made illegal.
lxvi


Recent case law backs up the ACLUs assertion. The Supreme Court held in Snyder v.
Phelps
lxvii
that the First Amendment protections extended to protesters picketing an Iraq
veterans funeral in opposition of gay-friendly policies because such speech was a matter of
public concern.
lxviii
Despite how despicable most Americans might find the protesters
actions, the ruling affirmed that even hurtful speech could be protected speech.
Nevertheless, revenge porn probably doesnt count as speech deserving of the
highest scrutiny. While some offensive speech is protected, certain categories of speech
can be regulated because they bring about serious harm and make only the slightest
contribution to free speech.
lxix
Revenge porn almost certainly falls within those categories
as the majority of nonconsensual conduct that states seek to limit is unlikely to be
considered matters of public concern.
Another reason why revenge porn laws might survive First Amendment challenges
is that this nonconsensual intimate content may be considered obscene, which, according
to Professor Eugene Volokh, is a category of speech the Supreme Court has determined
does not get First Amendment protection.
lxx
To Volokh, a constitutional revenge porn law is
possible. He notes that, a suitably clear and narrow statute banning nonconsensual
posting of nude pictures of another, in a context where theres good reason to think that the
16
subject did not consent to publication of such pictures, would likely be upheld by the
courts.
lxxi

In Michaels v. Internet Entertainment Group,
lxxii
a federal court considered the
nonconsensual publishing of a celebrity couples sex tape. In granting the plaintiffs request
for preliminary injunction blocking further distribution of the tape, Judge Pregerson
explained that, sexual relations are among the most private of private affairs, and a video
recording of two individuals engaged in such relations represents the deepest possible
intrusion into such affairs.
lxxiii
Because the public has little to no legitimate interest in
viewing most revenge porn and it depicts our most intimate relations with little to no First
Amendment value, precisely crafted laws ought to stand without chilling free speech.
Still, others point out that while lawmakers in places like California and New York
target the individuals initially responsible for posting revenge porn photos and videos, they
fail to address the harm created by websites that specialize in hosting and distributing the
content. These websites are generally protected under the Section 230 of the CDA, which
states [n]o provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information content
provider, basically sites are not liable for third party content unless they cross the line
from mere hosts to publishers of the material.
lxxiv
While this is a valid argument, it has only
fueled criminalization advocates calls to craft federal legislation since Section 230 does not
provide immunity against federal criminal charges.
Toward Federal Legislation
The state-led efforts to criminalize revenge porn are part of a larger movement to
urge the passage of federal criminal legislation. Because revenge porn is chiefly a form of
17
sexual use without consent, it should be treated as a crime on the federal level in order to
offer the most complete protection. Professor Franks has been instrumental in drafting
model state and federal law that will supersede challenges based on jurisdiction, the CDA,
and the First Amendment.
lxxv
A federal criminal law will allow both initial distributors and
website redistributors to be held liable. Plaintiffs would be able to reach across state lines,
much like website operators do, to hold perpetrators accountable.

CONCLUSION
The rapid proliferation of technology has made access to information easier than
ever before. Our culture is trending toward sharing everything we think, feel, and see via
social networking sites, blogs, text messages, and other sites that thrive on user-generated
content. The wealth of information and the ease with which its accessed poses challenges
to established notions of privacy. Generally, the ability of privacy law to reflect prevailing
societal norms is positive because its malleability leaves us untethered to rigid concepts of
what is private and decent. But given the significant harms and disproportionate impact
of revenge porn upon women, I cannot help but look at this gendered phenomenon through
a feminist lens and ask whether justice can be had via privacy laws if the prevailing cultural
attitude is one of victim-blaming, slut-shaming, and sexual double standards.
lxxvi

We should look to the law to set the pace here as it did with domestic violence and
sexual harassment by enacting legislation to criminalize revenge porn. State legislation as a
method of testing the legal and political waters has been improving California is a good
example as state lawmakers work with victims of revenge porn and their advocates to
craft legislation that stands up to opponents critiques and potential legal challenges.
18
Ultimately, a federal criminal law will offer the most protection, working alongside
established copyright and communications statutes that already contain exceptions for
federal criminal laws and providing law enforcement with a solid basis upon which to deter
and punish offenders.

i
Robert Siciliano. Do You Share Passwords with Your Partner? McAfee Blog Central, (Feb. 4,
2013). http://bit.ly/1clKTqY.
ii
Maeve Duggan. Photo and Video Sharing Grow Online. Pew Internet Project, (Oct. 13, 2013).
http://bit.ly/1bebwdk.
iii
Timothy B. Lee. Involuntary porn site tests the boundaries of legal extortion. Ars Technica, (Nov.
13, 2012). http://bit.ly/1clKVPJ.
iv
OxfordWords Blog. The Oxford Dictionaries Word of the Year 2013 is OxfordDictionaries.com,
(Nov. 2013). http://bit.ly/1clL5Xj.
v
Eric Goldman. Californias New Law Shows Its Not Easy to Regulate Revenge Porn. Forbes.com,
(Oct. 8, 2013). http://onforb.es/1clKKE6.
vi
bell hooks. Feminist Theory: From Margin to Center. (1984)
vii
EndRevengePorn.org. What is Revenge Porn? http://www.endrevengeporn.org/
viii
Danielle Citron. How to Make Revenge Porn a Crime. Slate.com, (Nov. 7, 2013).
http://slate.me/1clKF3p.
ix
Id.
x
Cory Janssen. Doxing. Techipedia.com, http://bit.ly/18CENEb.
xi
Id.
xii
Jacobs v. Seay. (Apr. 18, 2013). http://bit.ly/1fqco2H.
xiii
Holly Jacobs. Being A Victim Of Revenge Porn Forced Me to Change My Name Now I'm an
Activist Dedicated to Helping Other Victims. XOJane.com (Nov. 13, 2013).
http://bit.ly/1fqeaRw.
xiv
Jordan Larson. The New Pornographers. TheProspect.org, (Oct. 7, 2013). http://bit.ly/18ihBID.
xv
M. Ryan Calo. The Boundaries of Privacy Harm. 86 Ind. L. J. 3 (2011).
19

xvi
Charlotte Laws. I've Been Called the "Erin Brockovich" of Revenge Porn, and For the First Time
Ever, Here Is My Entire Uncensored Story of Death Threats, Anonymous and The FBI.
XOJane.com. (Nov. 23, 2013). http://bit.ly/1bLiklZ
xvii
Lauren Panariello. The Women Who Want to Make Revenge Porn Illegal. Cosmopolitan
Magazine. (Sept. 26, 2013). http://bit.ly/18CFUUg.
xviii
Calo, supra note 15.
xix
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Derek E. Bambauer. Exposed. Arizona Legal Studies, (August 2013).
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Id.
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Warren Freedman. The Right of Privacy in the Age of Computer Data and Processing, 13 Tex.
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xxiv
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xxv
Restatement (Second) Of Torts 652 (1977).
xxvi
Robert C. Post. The Social Foundations of Privacy: Community and Self in the Common Law Tort.
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xxvii
Hamberger v. Eastman, 206 A.2d 239 (1964).
xxviii
Daily Times Democrat v. Graham, 276 Ala. 380 (1964).
xxix
Restatement (Second), supra note 20.
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Post, supra note 21.
xxxi
Mary Ann Franks. Why You Cant Punch a Boxer in the Face When He Asks You for Directions:
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Danielle Citron. Blaming the Victim: Been There Before. Concurring Opinions. (Feb. 1, 2013).
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xxxiii
Danielle Citron. Laws Expressive Value in Combating Cyber Gender Harassment. University of
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20

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xxxv
Id.
xxxvi
The Communications Act of 1996, Pub. L. 104-104, 110 Stat. 137.
xxxvii
Restatement (Second) Of Torts 46 (1977).
xxxviii
Robert L. Rabin. Emotional Distress in Tort Law: Themes of Constraint. 44 Wake Forest L.
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Citron, supra note 6.
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National Conference of State Legislatures. State Cyberstalking and Cyberharassment Laws. (Dec.
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xli
See EndRevengePorn.org, supra note 5.
xlii
Pub. L. No. 105-304, 112 Stat. 2860 (1998)
xliii
Citron, supra note 28.
xliv
Mary Ann Franks. Why We Need a Federal Criminal Law Response to Revenge Porn. Concurring
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xlv
N.J. Stat. Ann. 2C:14-9
xlvi
Matt Friedman. Lawmaker seeks to stiffen invasion of privacy laws after Rutgers case.
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xlvii
NJ S460. LegiScan.com http://bit.ly/Jz5uNY
xlviii
Cal. Pen. Code, 647
xlix
Id.
l
Jeremy B. White. Revenge Porn Now Illegal in California. SacBee.com. (Oct. 1, 2013)
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Goldman, supra note 4.
lii
Patrick McGreevy. California bills to target 'ghost guns,' revenge porn. LATimes.com. (Dec. 17,
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liii
Office of the Attorney General. Attorney General Kamala D. Harris announces Arrest of Revenge
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21

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Assemblyman Edward C. Braunstein. Release: Assemblyman Braunstein and Senator Griffo
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lv
Pete Brush. NY Pols Say Disseminating 'Revenge Porn' Should Be Felony. Law360.com. (Oct. 7,
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lvi
Braunstein, supra note 47.
lvii
Wisconsin State Legislature. 2013 Assembly Bill 462. (Oct. 22, 2013). http://1.usa.gov/1fnFtMc
lviii
Id.
lix
Todd Richmond. Wisconsin Assembly votes to ban 'revenge porn'; Senate unlikely to consider law
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Jon S. Cardin. Make cyber-sexual assault a felony. JonCardin.com. (Nov. 21, 2013)
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lxi
Id.
lxii
Andrew Ford. Brevard sheriff backs bill limiting on nude-photo posting. FloridaToday.com.
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lxiii
Id.
lxiv
Florida State Senate. CS/SB 532: Disclosure of Sexually Explicit Images. (Dec. 12, 2013)
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lxv
Rick Stone. In Florida, 'Revenge Porn' Is A Moving Target. WLRN.org. (Dec. 6, 2013)
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lxvi
Senate Rules Committee. SB255 Bill Analysis. (July 2, 2013) http://bit.ly/1fFQ1XL.
lxvii
Snyder v. Phelps, 562 U.S.__. (2011)
lxviii
Id.
lxix
Citron, supra note 6.
lxx
Eugene Volokh. Florida Revenge Porn Bill. The Volokh Conspiracy. (Apr. 12, 2013)
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lxxi
Id.
lxxii
Michaels v. Internet Entertainment Group, 5 F. Supp. 2d 823 (C.D. Cal. 1998).
lxxiii
Id.
lxxiv
Communications Act, supra note 9.
22

lxxv
Mary Ann Franks. Combating Non-Consensual Pornography: A Working Paper.
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lxxvi
hooks, supra note 6.