Lawmaker eyes ‘revenge porn’ crackdown

Rep. Jackie Speier is preparing to unveil legislation criminalizing nonconsensual pornography.

A push to criminalize pornography posted to the Internet without the consent of those depicted appears to be gaining steam in Washington.

{mosads}Speier’s (D-Calif.) legislation would crack down on what’s being called revenge porn, even as some civil liberty advocates fear a federal statute could violate the First Amendment if it’s too narrowly written.

The lawmaker is in talks with several potential co-sponsors ahead of a planned July 23 rollout, according to her staff, which declined to name them in the midst of discussions.

“Many Republican-majority state legislatures have passed nonconsensual pornography laws and I’m confident that a federal bill crafted correctly will be signed into law as well,” Speier said in a statement to The Hill.

Once introduced, Speier’s bill will go before the House Judiciary Committee for discussion. 

Concerns are mounting about the damage wrought by a sector of the pornography industry that has exploded in recent years.

“The fallout of this content is very devastating,” said Mary Anne Franks, a professor at the University of Miami School of Law and vice president of the Cyber Civil Rights Initiative. “There are women committing suicide and losing their jobs.”

Franks has spent the last year working with Speier on the legislation, which would make the distribution of revenge porn in any form, via hard copy or over the Internet, a federal crime. 

The bill, known as the Intimate Privacy Protection Act, would ban photos of genitalia including post-pubescent nipples and videos of specific body parts and sexual acts if the non-consenting person depicted is identifiable by either their face or name.

Speier’s proposal is buoyed by new research made public Wednesday by the Information Technology and Innovation Foundation (ITIF), which found a host of negative effects of nonconsensual pornography, including damaged reputations, abusive communications from strangers, emotional
damage and real threats of violence.

The D.C-based public policy think tank’s report, “Why and how Congress should outlaw revenge porn,” found that even if a victim is able to convince one website to take an image down, it could pop up on another, creating a “harrowing game of whack-a-mole that leads to emotional distress.”

“Victims who own the image copyrights can ask websites to remove these images, but they may have to hire lawyers to enforce their requests,” the ITIF said. “Other victims face ‘sextortion’ websites running shakedown schemes that charge fees for image removal.”

A total of 24 states have already adopted their own protections. Of these, the ITIF’s report said seven offer civil remedies to victims.

Some states, including California and Florida, have clauses that make the law applicable only in situations where the perpetrator set out to harass the individual, the ITIF report said. In other states, the person publishing the images or videos has to have known the person did not consent to their disclosure.

Arizona offered protections for its residents up until last week, when the government agreed to permanently block the state law following a lawsuit from the American Civil Liberties Union (ACLU). The ACLU argued that Arizona’s law was overbroad and put booksellers, photographers, publishers and librarians at risk of a felony charges for publishing images fully protected under the First Amendment.

“You shouldn’t need a permission slip to post images of horrific torture from Abu Ghraib or the ‘Napalm Girl’ photograph that contributed mightily to changing American attitudes about the Vietnam War,” Lee Rowland, an ACLU staff attorney, said in a blog post on the organization’s website Friday. “These iconic images are obviously a far cry from ‘revenge porn,’ in which a person maliciously invades a former lover’s privacy.”

The ACLU contended that the Arizona law applied equally to both types of images.

But Franks said it’s possible to write a statute that’s narrowly drawn enough not to conflict with the First Amendment but broad enough to cover revenge porn.

Speier’s bill does include exceptions for images of a people who voluntary strip down in public, images that are voluntarily taken for marketing purposes and images that are disclosed in the public’s interest, which could include images of newsworthy events.

The potential criminal punishment for those who violate the law has yet to be determined, but Franks said websites that host the published photos would not be punished for merely failing to remove material.

“Only intermediaries who promote or solicit content that they know violates the statute could be prosecuted,” she said.

In her statement to The Hill, Speier said her bill stands on solid constitutional ground. 

“Like sensitive financial and medical information, nonconsensual pornography is fundamentally a privacy issue, on which the government can legislate,” she said. “I’m very concerned about protecting First and Fourteenth Amendment rights, so I’ve included extensive safeguards for them so that we can secure people’s privacy while still safeguarding people’s free speech rights.”

In addition to legislation like Speier’s, the ITIF recommended in its report that Congress create a special unit in the FBI to provide immediate assistance to revenge porn victims and direct the Department of Justice to work with the private sector on developing best practices for how online services can quickly remove nonconsensual pornography.