Federal Bill Would Criminalize Revenge Porn Websites

An anonymous reader writes with this excerpt from a thought-provoking article at TechDirt: "My own representative in Congress, Jackie Speier, has apparently decided to introduce a federal 'revenge porn' bill, which is being drafted, in part, by Prof. Mary Anne Franks, who has flat out admitted that her goal is to undermine Section 230 protections for websites (protecting them from liability of actions by third parties) to make them liable for others' actions. Now, I've never written about Franks before, but the last time I linked to a story about her in a different post, she went ballistic on Twitter, attacking me in all sorts of misleading ways. So, let me just be very clear about this. Here's what she has said: '"The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations.' That makes it clear her intent is to undermine Section 230 and make third parties — like 'Google, any website, Verizon... face liability.'"

Comments

Freedom of Speech?

[mi]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And, as we learned from "People vs. Larry Flint" (and other, less popular, sources), porn is speech...

However disgusting, "revenge porn" ought to remain legal...

Re:Freedom of Speech?

[Ralph Wiggam]

The main court case in People vs Larry Flynt is about the right to mock public figures, in that case Jerry Falwell. It had nothing to do with pornography.

http://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell

Re:Freedom of Speech?

[ackthpt]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And, as we learned from "People vs. Larry Flint" (and other, less popular, sources), porn is speech...

However disgusting, "revenge porn" ought to remain legal...

Cough. Your freedoms end where other's begin. Cough.

Re:Freedom of Speech?

[fermion]

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.

In the Larry Flynt case the naked women were deemed to be adults who allowed their image be taken and printed. He likely did the paper work for releases, and photographed the women overtly and with full knowledge that the images would be published. Honestly the freedom of speech that was being protected in that case were of the women, not of Flint. A negative ruling would have meant that an adult women, or in the case of hustler many men, would no longer be able to expose herself or be penetrated for compensation.

So the cases are not really comparable. In revenge porn the images may not have taken overtly. In revenge porn the woman might not have agreed to have the images spread beyond the local area. Furthermore, it might a violation of copyright. If the victim did know that she or he was being filmed, there is no guarantee that victim was not in fact the one who made arrangement for the film to be made and in fact the person with copyright. The person who releases the film may just be an participant who did not own the camera, or set up the production, and therefore has not right to communicate the film to the public.

So to be clear if a person arranged to video themselves masturbating or having sex with partner(s) that are aware the video is going public, then stopping that would be a violation of free speech, but otherwise not. If we did accept your argument, then we would also have to accept that it would be a violation of free speech to film film young girls in a dressing room or to take covertly film women going up an escalator so we can see up their dresses. In both cases, this is not acceptable, and the former is is not only because of age issues.

Re:Freedom of Speech?

[Opportunist]

There is a fine line between free speech and slander.

At the very least I'd put in a safeguard where you'd have to prove that the entity you claim is trying to display you negatively is actually really trying to do so. I.e. Google has no interest to show your naked pics you handed to your ex in secrecy. Your ex does.

If anything, make people liable for releasing naked pics of people they have no right to release. So you better guard those naked pics of your lover well.

Because else, all I'd have to do to evade that law is to post the pics of my ex on some board and wait for the various sex sites in countries that don't give a fuck about what Mrs. Congresswoman barfed up pick them up and display them.

Re:Freedom of Speech?

[rolfwind]

What is speech? I think that's making any argument you'd like for or against something, the establishment, other ideas, the man, etc.

I think requiring the sign-off of all parties for pornographic videos (or any any other really where privacy is a reasonable expectation) might not be a bad idea.

But maybe it can be generalized. Say video of a person is captured in a changing room at some dept. store, the security guard takes it to try to sell it to a magazine because he thinks it's a famous person, it gets printed/put on the web. Should that be allowed? Now, think, that perhaps even if it was a celeb, they should be afforded the same protection as well?

I think perhaps it can be generalized to situations where the person expects privacy, video should not be released unless it's in the public interest (you catch the President discussing how the NSA can break into private homes to get documents) or for other criminal matters (politician taking bribes, adult trying to lure kids in a van, whatever).

Isn't there a line that protects both free speech and human dignity?

Given how small cameras and microphones have come, our freedom of speech has slammed into our rights to be safe and secure in our own homes, and lastly our own persons, our bodies.

Just like disallowing someone to yell fire in a theater, you are not actually imposing on free speech in a significant way, (I can still argue that it can be allowed, or that fires in theaters are a problem, etc), I don't see how allowing for human dignity will impose on free speech here.

I can see how a law will do that, but only if we try to be staunch and try to resist at all costs. This debate has been long in coming. We should participate and be instrumental in crafting something reasonable instead of letting a draconian law pass that merely uses a legitimate issue for the legislators' and their handlers' own ends.

What do we have to lose out on? A quick laugh at Star Wars kid where we got a few seconds of enjoyment at the cost of years of this kid's life and psyche, and other misfortunates like him? Where's the free speech in that?

Re:Freedom of Speech?

[asmkm22]

And without any additional context, you could argue that child porn or horse porn is also perfectly legal, due to free speech. Fortunately, free speech only goes so far in terms of justifying certain actions.

Re:Freedom of Speech?

[mi]

Honestly the freedom of speech that was being protected in that case were of the women, not of Flint.

Distinction without (much) difference. Point is, publishing a picture — pornographic or otherwise — is speech...

it might a violation of copyright

Your image is not copyrighted — or else paparazzi's trade would've been illegal. But we already have laws against copyright violations (if any), so why the new bill?

If we did accept your argument, then we would also have to accept that it would be a violation of free speech to film film young girls in a dressing room or to take covertly film women going up an escalator so we can see up their dresses.

My argument is that, generally, whatever can be legally seen (and peeking into a dressing room is illegal), can also be legally recorded (and the recordings subsequently published). Any laws to the contrary violate the First Amendment.

Re:Freedom of Speech?

[Obfuscant]

The first amendment guarantees that my speech an never (legally) be restricted, constrained, repressed, silenced, censored, etc. by the government. Never.

The Supreme Court has ruled otherwise. Guess who is the Constitutionally appointed authority on the Constitution?

Re:Freedom of Speech?

[Anonymous Coward]

Other's freedom not to appear on porn sites if they never consented to it.

Re:Freedom of Speech?

[MightyMartian]

Judging by these kinds of posts, I'm guessing a fifth to quarter of the posters are borderline sociopaths. No wonder libertarianism is so popular here.

Re:Freedom of Speech?

[MightyMartian]

Uphold != interpret

Re:Freedom of Speech?

[Artifakt]

The first amendment guarantees that my speech (c)an never (legally) be restricted, constrained, repressed, silenced, censored, etc. by the government. Never.
Slander someone? Libel them? Threaten immediate bodily harm? Extort? Divulge information during a trial despite court order? Reveal medical or financial information you become privy to in an official capacity? Speak against the authority of a judge or other court official in proceedings? Display contempt for said judge in open court? Swear at or otherwise intimidate a person being constrained to remain on the spot by law enforcement? ,Just interrupt or speak over the speech of a person being questioned by law enforcement at the time? Verbally challenge the policeman him or herself during his or her otherwise legitimate excercise of police powers? Give verbal aid or comfort to an enemy nation during time of war

Oh yeah, the First Amendment supports your right to do any or all of those, and a pig buzzed me at Mach 3 yesterday.
Hint - there is one social contract - the law.
Hint 2 - you obviously know nothing about that.

Re:Freedom of Speech?

[Anonymous Coward]

Guess who is the Constitutionally appointed authority on the Constitution?

There is no constitutionally appointed authority on the constitution. John Marshall claimed that for the court in Marbury v. Madison.

Re:Freedom of Speech?

[pla]

Cough. Your freedoms end where other's begin. Cough.

So far, virtually all the discussion on this topic has centered around the rights of the victim. I apologize for responding to you personally, but you have the most visible post continuing the "wrong" discussion here. :)

The problem here has nothing to do with whether or not we should condemn the concept of "revenge" porn, but rather, whether a website should bear liability for content posted by a third party. That should scare the hell out of all of us, liberal or conservative, pro-porn or feminist, rich or poor.

Look beyond porn for the implications of this - Should Amazon bear criminal liability for allowing a joking review that says "this blender turns lead into gold" to remain? Should Yelp need to fact check every single review of some rat-trap motel or suffer liability for defamation? If a blogger dares to criticize Italian or French judges for their sham of a legal system, should Wordpress' CEO (or given what I just said, Dice's CEO) go to prison? And those don't even get into the issue of search engines, where literally everything on the internet can show up - Do we really expect Google to bear the burden of making sure no one has posted something incorrect or illegal on the entire internet?

If so... Goodbye, Internet (at least in the US - Which still effectively means "Goodbye, Intenet"). Section 230 means more than a loophole for pesky websites to intentionally look the other way - It makes the entire concept of public participation in a shared discussion possible.

Re:Freedom of Speech?

[grahamsz]

The problem is that generally, in the absence of any other agreement, the photographer owns the copyright to the image and can give that image to whatever site he or she chooses. In certain situations they might not be able to accept payment for it, but exhibiting their work is really their right.

If you are letting a partner take images of you then you are, without any further agreement, letting them do what they choose with that image.

Within current law, the only reasonable way to solve that is to have a contractual agreement in place first that allows you to recoup civil damages from the other party if they use the image in a way that you don't expressly consent to.

Re:Freedom of Speech?

[TubeSteak]

Perhaps you should read the actual first amendment, rather than the text written in invisible ink that authoritarian judges added to it.

Our legal tradition didn't start with the Constitution and you understanding of it can't start there either.

This is really important: The Constitution was not written in a vacuum.
I'll say it again: The Constitution was not written in a vacuum.

Long before the Constitution and its Amendments were conceived, there was this thing called "common law."
Slander, libel, and threatening immediate bodily harm were already illegal.
The 1st Amendment was never intended to legalize such behavior.

We know this, because the guys who authored and debated the Amendments had voluminous written correspondences on the matter.

Your approach to the Constitution is like a layman reading the Bible,
without any historical context and proclaiming "I understand the word of God."
You don't. Your interpretation is unequivocally wrong. Please don't misinform others.

Re:Freedom of Speech?

[smugfunt]

a fifth to quarter of the posters are borderline sociopaths

That would be consistent with the population at large; 20% authoritarian followers, 5% social dominators according to Altemeyer.

Re:Freedom of Speech?

[Lord Kano]

It's not defamation of character if what you say is true.

Basically, if you're not photoshopping someone's head onto another body, revenge porn is not defamation.

LK

Re:Freedom of Speech?

[Billly Gates]

It is disgusting, but the original poster replied to a further post about how this can be abused and that is why he opposes it.

Suppose you have a legit porn website. Someone uploads some porn with an exwife masturbating as an example. The divorce lawyer finds it and guess what? You are sued for revenge porn and now need to pay $5 million dollars to this women you never met so she doesn't have to work and go shopping off your retirement.

When laws come out like this whether laws that say the right to face your accuser does not apply in rape, or banning child porn, or implementing sexual harassment laws all have adverse consequences.

For example lets say you have a daughter who is 16 and filled with hormones. She takes a pic of her breasts and uploads them to her boyfriend. CHILD PORN MANUFACTURER! Her life is now ruined forever.

Or about how if you have a drink with a woman from work on a saturday and you get too friendly. Your boss can be liable for a hostile work environment even off the clock and can loose his business.

Be carefully what you support based on emotion. Going to far and the lawyers will find something to be used to the extreme.

I am so darned split with the right to refuse gays service in Arizona for example! I find it deplorable to oppose gay marriage! People should have any right.But I want to start a business. I have every darn RIGHT to refuse service for ANY reason. I own it! Lets say someone was costing me more than I was making. Or makes an unreasonable offer which is below cost. I refuse. Now I get to be freaking sued as I later find out the customer is a lesbian. Just freaking great!

I hate lawyers with a passion and trivial lawsuits. So I fit in this camp with less is better until we get real tort reform.

Re:Freedom of Speech?

[countach74]

I'm not sure about the constitutionality, but as far as right to contract and private property rights go, if said pornographic images were given under the express condition that they not be distributed, a violation of the contract would constitute a case for fraud. Of course, most people would make such an arrangement verbally, making it harder to prove in court. Ultimately, though, people need to be accountable for their own actions: if you don't want to be a "victim" of revenge porn, be careful about how you give it out and to whom. As bad as revenge porn is, unprincipled government intervention to fix the problem will almost certainly be worse.

Re:Freedom of Speech?

[Shadow of Eternity]

The closest non-horrible way to do it I can think of would be codifying the right to privacy and control of personal images/data when it comes to publication for mass consumption. It wouldn't hurt people taking photographs in public, news crews, or similar because of the "reasonable expectation of privacy" standard. It's plain on its face that someone has a reasonable expectation that pornographic images given to a then-sexual partner are expected to be for that individuals consumption alone, whereas you have no reasonable expectation not to show up briefly walking past a news camera.

Re:Freedom of Speech?

[dcollins117]

if you don't want to be a "victim" of revenge porn, be careful about how you give it out and to whom.

if you don't want to be a "victim" of revenge porn, don't pose for pornographic photos in the first place. The whole point of a photograph is to capture a moment in time for later viewing.

Potential for disaster

[Anonymous Coward]

There are an uncountable number of ways this could go, but it seems to me that the potential for huge problems stemming from how dangerously close the bill gets to free speech issues is large.

Re:Jerkfaces Usually Get Their Due

[AlphaWolf_HK]

Is there room for this behavior in a world where saying the "N" word, calling gay people words beginning with "F", etc. isn't socially acceptable?

You don't become a criminal for doing that.

Re:This is a REALLY bad idea

[gnupun]

This law is kinda like:

"If you run with scissors and hurt someone it's okay to criminalize and sue the scissor manufacturer."

Re:Jerkfaces Usually Get Their Due

[Theaetetus]

"This is a no-brainer. Revenge porn is an abuse of trust." This is a MASSIVE assumption. If you allow someone to record you in intimate acts, you have no one to blame but yourself. Free Speech trumps hurt feelings for 'lapses of morality'. Dont want to have a sex tape leaked? dont agree to be filmed.

First, that's entirely wrong. Your argument is premised on the concept that if you consent to one thing - e.g. making a sex tape - you consent to everything that can possibly be done with it. That's not true. Consent can be as narrow or broad as the consenting person wants. If you let me borrow your car, you're not necessarily consenting to let me rent out your car to my friends for use in a demolition derby. Consent to one thing is not consent to everything.

Second, your argument is an attempt to discourage people from making sex tapes. What are you, asexual? And if so, then why is this an issue you're concerned about? Shouldn't you be off not-masturbating somewhere? The rest of us would prefer that people make sex tapes, happily and in full confidence that their privacy will not be abused and their narrow consent to make a sex tape and share it with one or two people will not be broadened by some douchebag into consent to have it broadcast online.