posted by Mary Anne Franks
As promised in the comments section of my last post, I offer in this post the outline of my proposal to effectively combat revenge porn. A few preliminary notes: one, this is very much a work in progress as well as being my first foray into drafting legislative language of any kind. Two, a note about terminology: while ?revenge porn? is an attention-grabbing term, it is imprecise and potentially misleading. The best I have come up with as a replacement is ?non-consensual pornography,? so that is the term I will use throughout this post. I would be interested to hear suggestions for a better term as well as any other constructive thoughts and feedback.
I want to emphasize at the outset that the problem of non-consensual pornography is not limited to the scenarios that receive the most media attention, that is, when A gives B (often an intimate partner) an intimate photo that B distributes without A?s consent. Non-consensual pornography includes the recording and broadcasting of a sexual assault for prurient purposes and distributing sexually graphic images obtained through hacking or other illicit means. Whatever one?s views on pornography more broadly, it should be a non-controversial proposition that pornography must at a minimum be restricted to individuals who are (1. adults and (2. consenting. Federal and state laws take the first very seriously; it is time they took consent requirements seriously as well.
Before I offer my proposal for what a federal criminal prohibition of non-consensual pornography could look like, I want to explain why looking to federal criminal law is the most appropriate and effective response to the problem. In doing so, I do not mean to suggest that other avenues are illegitimate or ill-advised. I support the use of existing laws or other reform proposals to the extent that they are able to deter non-consensual pornography or provide assistance to victims. That being said, here is my case for why federal criminal law is the best way to address non-consensual pornography, in Q&A form.
Why criminal law? Can?t the problem be adequately addressed by tort and/or copyright law? There are two answers to this, one concerning what could be called legal integrity and the other concerning practical obstacles. On the first, we should regard non-consensual pornography as a crime because that is the most accurate and principled characterization of its harm. Non-consensual pornography may indeed also be a violation of privacy or an infringement of copyright, but it is at its base an act of sexual use without consent. When such sexual use is inflicted on an individual?s physical body, we call it rape or sexual assault. We also accept, both as a matter of intuition and as a matter of law, that forcing an individual to strip naked and perform sexual acts can plausibly be considered a crime, even if the perpetrator never touches the victim. The fact that perpetrators and victims are not in physical proximity in non-consensual pornography should not change this analysis.?Nor should the fact that such an assault is not physical remove it from the category of criminal sexual use without consent. Our society readily accepts that child pornography, for example, is a crime separate from the physical act of child abuse ? that is, we recognize that the production and distribution of the image is a harm in itself. Of course this does not mean, as some have tried to suggest, that this would lead to the ridiculous result that we should or could criminalize any sexual thought a person has of another person without their consent. The fact that viewing and distributing child pornography is a crime clearly does not lead to the result that merely thinking sexually about a child must also be a crime; there is no reason to think that criminalizing non-consensual pornography would require such a result either. The Supreme Court recognized in New York v. Ferber that the ?distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children?s participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled ? The most expeditious, if not the only practical, method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product.? Victims of non-consensual pornography of any age are harmed each time a person views or shares their intimate images, and to allow the traffic in such images to flourish increases the demand and the pervasiveness of such images.
With regard to practical obstacles, tort actions place a tremendous burden on the victim and in many cases will be an implausible or impossible approach. Civil litigation of any kind requires money, time, and access to legal resources. Perhaps most distressingly, it often requires further dissemination of the very material that harms the victim. The irony of privacy actions is that they generally require further breaches of privacy to be effective. Moreover, the priority of most victims is to have the material removed, not to recover damages. Additionally, in many cases the party responsible will not have enough financial resources to make a damages claim worthwhile (i.e., the defendant will be judgment-proof). This leads us to the other difficulty in bringing tort claims for non-consensual pornography: it?s very difficult to find a party to sue. Given the ease with which individual purveyors of non-consensual pornography can access or distribute images anonymously, it is difficult to identify and prove (especially for the purposes of a lawsuit) who they are. So why not go after the websites distributing the images? The answer, as Prof. Citron and others have detailed, Section 230 of the Communications Decency Act will probably stand in the way. CDA ?230 has been interpreted to grant website owners and operators far-ranging immunity for tortious material submitted by third-party users (?No 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.?). Though one can hope that more courts rule along the lines of the Ninth Circuit in Fair Housing Council v. Roommates.com, such rulings are very rare so far.
Copyright law is more promising for some victims of non-consensual pornography because CDA ?230 does not immunize websites from copyright claims. If a victim took the image or video herself, she is the copyright owner and can in theory take action against unauthorized use. This strategy has proven successful in some cases. However, this option will not be of use to the many victims who do not take the images or videos themselves. Some lawyers and scholars have suggested that an expansive conception of ?joint authorship? might cover these victims, but it is not clear how much traction this theory will have in actual cases. Moreover, similar problems of publicity, time, and resources that accompany tort claims hinder copyright claims.
Why aren?t existing criminal laws (many of which are federal) sufficient to address this issue?? Some forms of non-consensual pornography fit, or could be argued to fit, definitions of existing crimes. None of them, however, could be used in more than a minority of cases, and the protections they offer are incomplete. For example, if 18 U.S.C. 2257 sets out recordkeeping requirements for producers of pornography, but it is seriously limited in two ways.? First, the statute?s definition of ?producer? does not seem to include websites that solicit images from third-party users, which are the websites most likely to include non-consensual pornography. Second, the law focuses almost exclusively on age-verifying identification. It sets out no requirements to verify that the individuals portrayed have consented to the use of their images. Thus, adult victims are not protected. The Interstate Anti-Stalking Punishment and Prevention Act: 18 U.S.C. 2261A makes it a crime ?to use the mail, any interactive computer service, or any interstate or foreign commerce facility to engage in a course of conduct that causes substantial emotional distress to a person or causes the person or a relative to fear for his or her life or physical safety.? This statute could apply to some instances of non-consensual pornography, but has not often been interpreted to do so. In addition, many perpetrators of non-consensual pornography may not fulfill the intent requirement of the statute, namely, the intent to ?to kill, injure, harass, or intimidate a spouse, intimate partner, or dating partner.? Many admitted purveyors of non-consensual pornography maintain, with some plausibility, that their sole intention is to obtain notoriety, fulfill some sexual desire, or increase traffic for their websites. Additionally, many individuals involved in the production or distribution of non-consensual pornography have no intimate relationship to the victim as required by the statute. The Video Voyeurism Prevention Act of 2004, 18 U.S.C. 1801, makes it a crime to intentionally ?capture an image of a private area of an individual without their consent, and knowingly do[] so under circumstances in which the individual has a reasonable expectation of privacy.? Substantively, this Act could cover some instances of non-consensual pornography, but it is not clear that this statute would reach situations in which the initial image is consensually produced or given, but subsequent dissemination and access is not. The statute is written without acknowledgment of the contextual nature of consent. The statute?s reach is moreover limited to ?the special maritime and territorial jurisdiction of the United States.? Finally, the Computer Fraud and Abuse Act, 18 U.S.C. 1030, addresses various forms of computer fraud and hacking. Because non-consensual pornography sometimes involves computer fraud and hacking, some perpetrators would theoretically run afoul of this statute. However, such activity is not the real target of this statute, and there are ways to participate in the creation or distribution of non-consensual pornography that do not involve hacking or fraud as defined by this statute.
Why federal, as opposed to state, criminal law? State laws, while important, have limited jurisdiction. The fact that one or even many states might criminalize non-consensual pornography will not help a person who is victimized in a state that does not. The Internet has greatly facilitated the capacity to commit interstate crimes, and the only way to reach such crimes is through federal law. However, it is important for states to pass their own non-consensual pornography laws, in part because the distribution of such content does not always take place on the Internet. A person standing on a street corner handing out photographs or DVDs containing non-consensual pornography is likely not engaging in interstate commerce. In such an instance, state, not federal, law is the way to prohibit or punish his conduct. A federal criminal law on non-consensual pornography would also have the salutary effect of providing a model for state laws. In the absence of such a federal law, New Jersey provides an example for other states and the federal government in its criminalization of certain invasions of privacy, in particular those involving intimate photographs or videos. New Jersey law prohibits a range of acts of non-consensual observation or disclosure of sexual activity.
Doesn?t criminalizing non-consensual pornography raise First Amendment concerns? The Supreme Court held in Miller v. California that obscenity does not receive First Amendment protection. The Court set out guidelines for determining whether material is obscene: ?(a) whether ?the average person, applying contemporary community standards? would find that the work, taken as a whole, appeals to the prurient interest, ?; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.? Further, the Supreme Court held in New York v. Ferber that child pornography is not protected by the First Amendment: ?The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: a trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.? Non-consensual pornography plausibly fits either into the category of ?obscenity? or as a variation of child pornography, thus depriving it of First Amendment protection. Of course, statutory language must be carefully drafted to avoid vagueness and overbreadth, and I have tried to be sensitive to such concerns in my draft statute.
What would a federal criminal statute on non-consensual pornography look like? In drafting a proposed statute, I have examined the language and provisions of existing state and federal criminal laws on other forms of sexual abuse. The following is the product of my efforts so far.
Proposed Federal Law: Non-Consensual Pornography
I. Whoever uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct or travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States to produce or disclose a sexually graphic visual depiction of an individual without that individual?s consent shall be fined under this title or imprisoned not more than one year, or both.
A. Definitions:
(1) ?Disclosure? includes creation, distribution, publication, dissemination, transfer, sale, purchase, delivery, trade, offering, or advertising;
(2)? ?Sexually graphic? means revealing intimate areas of an individual or exposing an individual engaged in sexually explicit conduct;
a. ?Intimate areas? is defined as in 18 USC?? 1801: ?the naked or undergarment-clad genitals, pubic area, buttocks, or any portion of the female breast below the top of the areola?;
b. ?Sexually explicit conduct? is defined as in 18 USC ? 2256: ?(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited; (ii) graphic or lascivious simulated; (I) bestiality; (II) masturbation; or (III) sadistic or masochistic abuse; or (iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person?;
(3) ?Visual depiction? is defined as in?18 USC ? 2256: ?includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format;
II. It is an affirmative defense to a crime under this statute that:
A. ? The actor can produce verifiable written consent by the individual(s) depicted. The falsification of such forms shall be punishable by law.
B. ?? The actor acted with a lawful purpose, including law enforcement in connection with a criminal prosecution; compliance with subpoenas or court orders for use in legal proceedings; routine security observation by retail establishments when such observation is clearly posted; employers acting within the scope of their employment.
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