Plan to Criminalize Revenge Porn Will Arrive After Recess

Just months after revenge porn came under John Oliver's withering spotlight, Congress is getting into the act with legislation to ban the practice outright.

With the recent addition of Texas, Oregon, and Vermont, half of U.S. states (plus Washington, D.C.) now have a law that addresses nonconsensual pornography. But because the laws vary so widely—some criminalize the practice entirely, while others only punish people who post compromising photos with an intent to harass the subject—some think Congress should put forward a law that would criminalize the practice of posting nonconsensual explicit images online on a federal level.

After members return from August recess, a group of lawmakers led by Rep. Jackie Speier of California will introduce legislation that would make it illegal to distribute explicit images without the consent of the subject. The House bill was coauthored by Speier, who is a Democrat, and a yet-unnamed Republican. A mirror bill will be introduced in the Senate.

Speier, a San Francisco-area representative and longtime advocate of both privacy and women's rights, says she considers the legislation a privacy issue rather than a sexual-harassment issue.

"This is not just about jilted lovers trying to get revenge. This is about protecting an individual's right to privacy," she said in a phone interview. "It is something that we value in the First Amendment, and it's something that I think cries out for a federal solution."

Speier had previously said she would introduce the bill before the recess, but the bill's Senate sponsor wanted to push it to September, an aide said. Any attempt to pass a law banning revenge porn, however, will come up against stiff resistance from free-speech advocates, who oppose criminalizing any sort of online expression.

In the past year, law enforcement has been stepping up its use of existing law to go after people who post and promote revenge porn. In January, the Federal Trade Commission ordered a revenge-porn site taken down because it violated fair business practice laws. And in February, a San Diego man was sentenced to 18 months in prison for running a revenge-porn website, having been found guilty on six counts of extortion and 21 counts of identity theft.

At the same time, the private sector has made significant moves to keep revenge porn off the Internet. Google and Bing made changes to their policies to make it easier for victims of nonconsensual porn to take down compromising photos. Social networks have also taken stepsto ban revenge porn, and in February even the notoriously lawless Reddit joined in.

Speier's native California is one of the 25 states with a law that bans revenge porn. The state's first attempt at outlawing revenge porn faltered when it failed to address compromising selfies posted without the consent of the subject; the bill was watered down over privacy concerns before it became law, a California assemblyman said in 2013. The legislation was amended to include selfies the following year, and in December a Los Angeles man became the first person to be convicted under the law.

California's is one of the broadest laws in the country, according to Carrie Goldberg, a civil litigator in New York City who specializes in Internet-privacy and sexual-consent cases. On the other side of the spectrum is Nevada's much narrower law, which requires that there be an intent to harass, abuse, or menace the victim of revenge porn.

Speier says sharing explicit images without consent should be treated the same way in every state, and should be addressed as soon as possible. "The fact that the Web is so ubiquitous and knows no state borders would suggest that having a federal law makes a great deal of sense," she said.

But Lee Rowland, a senior staff attorney at the American Civil Liberties Union who focuses on First Amendment rights, says broadly criminalizing revenge porn is the wrong approach, and could actually backfire.

"There really isn't a precedent for criminalizing the sharing of an otherwise lawful image that you've obtained lawfully," Rowland says. "Our take at the ACLU is that the more a law focuses on the intentional and knowing invasion of privacy, the more likely it is to pass constitutional muster.

"A broad law offers no one protection if it's struck down by the courts," Rowland added.

Even the principle of criminalization is one that divides privacy and free-speech advocates. Goldberg, who is a board member at the Cyber Civil Rights Initiative, a nonprofit that provides resources to victims of nonconsensual pornography and advocates for legislation to prevent abuse, says criminalizing revenge porn sends an important message.

"We have criminal laws when we as a society find a type of conduct so outrageous that we need to punish people for it," Goldberg said. "It's a reflection of our social norms and values."

Asked why criminalization is the answer, Speier said simply, "Because it's a criminal act."

But Rowland says criminalization is a tool for punishing intentional harm. "We don't use criminal law to remedy humiliation," she said. Law enforcement and prosecutors should instead do a better job of using current laws to prosecute offenders, Rowland says, and the federal government should focus on creating incentives to encourage action.

In addition to navigating the murky waters of privacy and free speech, any law that criminalizes revenge porn must also address the concerns of tech companies like Facebook and Twitter, whose social platforms are used to distribute nonconsensual pornography.

The companies want to make sure they would not be held liable for an illegal image posted to their platforms, and Speier's bill builds in protections for those companies.

The protection comes in the form of Section 230 of the Communications Decency Act of 1996, which holds online platforms not liable for publishing content posted by others. That law is an important safeguard for social-networking services, and an aide in Speier's office said it will not be touched.

"If you're protected under 230, then even if you have this content on your website, you are not criminally liable unless you knowingly promote it," the aide said.

If the bill's sponsors—which already include at least six Democrats and six Republicans in the House, according to the aide—can get industry on board, what remains is convincing the public and other lawmakers that criminalizing revenge porn does not curb free speech.

"The legislation has been vetted by numerous constitutional scholars, and we have taken their recommendations and incorporated it into the draft of the bill so that it does follow established privacy protections without infringing on First Amendment rights to free speech," Speier said.

But the tightrope between privacy and free speech is a precarious one. "The devil will be in the details," Rowland said.