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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 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.
Originaltitel
Without Her Consent: Why Criminalization is the Appropriate Response to the Gendered Expressions of Revenge Porn
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 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.
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 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.
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 6 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
8 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 11 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 12 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 Soraya Chemaly. Slut-Shaming Needs to End Now. The Huffington Post, (Nov. 11, 2011). http://huff.to/18iezE3 xx Derek E. Bambauer. Exposed. Arizona Legal Studies, (August 2013). xxi Id. xxii Samuel Warren and Louis Brandeis. The Right to Privacy, 4 Harv. L. Rev. 193 (1890). xxiii Warren Freedman. The Right of Privacy in the Age of Computer Data and Processing, 13 Tex. Tech. L. Rev. 1361 (1982). xxiv William Prosser. Privacy, 48 Calif. L. Rev. 383, 389-92 (1960). xxv Restatement (Second) Of Torts 652 (1977). xxvi Robert C. Post. The Social Foundations of Privacy: Community and Self in the Common Law Tort. Yale Law School Faculty Scholarship Series. Paper 211, (1989). Citing, 2 F. Harper & F. James, The Law Of Torts 16.2 (1956). 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. xxx Post, supra note 21. xxxi Mary Ann Franks. Why You Cant Punch a Boxer in the Face When He Asks You for Directions: Consent, Context, and Humanity. Concurring Opinions. (Feb. 9, 2013). http://bit.ly/18Us8Kj xxxii Danielle Citron. Blaming the Victim: Been There Before. Concurring Opinions. (Feb. 1, 2013). http://bit.ly/1bNzBHQ xxxiii Danielle Citron. Laws Expressive Value in Combating Cyber Gender Harassment. University of Maryland School of Law. (Dec. 2009). 20
xxxiv Ann Bartow. Internet Defamation As Profit Center: The Monetization of Online Harassment, 32 Harv. J.L. & Gender 383 (2009). 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. Rev. 1197, 1200. (2009) xxxix Citron, supra note 6. xl National Conference of State Legislatures. State Cyberstalking and Cyberharassment Laws. (Dec. 5, 2013) http://bit.ly/ITEQzw 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 Opinions. (Feb. 15, 2013) http://bit.ly/19R6qUF xlv N.J. Stat. Ann. 2C:14-9 xlvi Matt Friedman. Lawmaker seeks to stiffen invasion of privacy laws after Rutgers case. NorthJersey.com. (Oct. 1, 2010) http://bit.ly/Jz5a1D 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) http://bit.ly/19R8UCh li Goldman, supra note 4. lii Patrick McGreevy. California bills to target 'ghost guns,' revenge porn. LATimes.com. (Dec. 17, 2013) http://lat.ms/19RapAz liii Office of the Attorney General. Attorney General Kamala D. Harris announces Arrest of Revenge Porn Website Operator. State of California Department of Justice. (Dec. 10, 2013) http://bit.ly/19RbqZn 21
liv Assemblyman Edward C. Braunstein. Release: Assemblyman Braunstein and Senator Griffo Announce "Revenge Porn" Legislation. NY State Assembly. (Oct. 3, 2013) http://bit.ly/1fnz43I lv Pete Brush. NY Pols Say Disseminating 'Revenge Porn' Should Be Felony. Law360.com. (Oct. 7, 2013) http://bit.ly/1fnzh6P 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 until new year. StarTribune.com. (Nov. 12, 2013) http://strib.mn/1fnFCiK lx Jon S. Cardin. Make cyber-sexual assault a felony. JonCardin.com. (Nov. 21, 2013) http://bit.ly/1c1SJGH. lxi Id. lxii Andrew Ford. Brevard sheriff backs bill limiting on nude-photo posting. FloridaToday.com. (Mar. 7, 2013) http://on.flatoday.com/1c1UC5Y. lxiii Id. lxiv Florida State Senate. CS/SB 532: Disclosure of Sexually Explicit Images. (Dec. 12, 2013) http://bit.ly/1c1Ym7z. lxv Rick Stone. In Florida, 'Revenge Porn' Is A Moving Target. WLRN.org. (Dec. 6, 2013) http://bit.ly/1c1WY4T. 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) http://bit.ly/JJv8Am. 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. EndRevengePorn.org. (Oct. 7, 2013) http://bit.ly/1cSaisD. lxxvi hooks, supra note 6.