A federal ban on ‘revenge porn’ could change online harassment laws

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The US may be on the verge of passing the first federal law against non-consensual pornography or “revenge porn.” If so, it could spark a debate about the balance between punishing serious harm and restricting free speech.

Lawmakers in 46 states (as well as Guam and the District of Columbia) have already banned non-consensual pornography – nude or sexually explicit images distributed without the consent of their subjects. But activists have long called for a federal bill to replace the patchwork of state laws – and now they’re about to get it.

A new measure that would prohibit knowingly or recklessly distributing “intimate visual images” of dissenting subjects, has been added as an amendment to the Violence Against Women Act, a re-authorization of a popular 1994 bill intended to protect victims of domestic violence and sexual assault. to protect. The measure was passed by the Lower House in March and is currently awaiting a vote in the Upper House. If it is eventually signed into law, offenders could face up to two years in prison for any person whose images they distribute. It would be the first time US federal law has seriously tackled non-consensual porn, with potentially far-reaching consequences for anyone hosting user-uploaded images online.

The new measure first appeared in 2019 as the stand-alone SHIELD Act (or the Stopping Harmful Image Exploitation and Limiting Distribution Act), introduced by Rep. Jackie Speier (D-CA) and created with help from Cyber ​​Civil Rights Initiative (CCRI) co-founder Mary Anne Franks. The CCRI said the bill saved victims from a “confusing patchwork” of state laws, and in an email to The edge, Franks called the bill “pretty close to ideal.”

Unlike many anti-non-consensual porn rules, the provisions of the SHIELD Act don’t depend on perpetrators’ motives – whether they were intended to harm the victim, for example. It just requires them to know (or recklessly ignore the possibility) that the image was being shared without permission and that the person had a reasonable expectation of privacy. That will make prosecuting offending sites much easier, but it also raises new concerns about potential threats to free speech.

Jessica Magaldi, a law professor at Pace University who published a review last year on the statutes of “revenge porn,” says this is a relatively rare approach that she would like to see more broadly. “I would say a lot of the states have been misguided in their efforts,” she says. “They are overly concerned about the perpetrator’s intentions.”

Despite the name, most “revenge porn” incidents are not actually about revenge. The CCRI estimates that about 20 percent of cases are specifically aimed at causing harm, while “the vast majority are motivated by something else: a desire for profit, fame, social status, entertainment, voyeurism, or no reason at all,” says Franks. “Far too many state laws treat nonconsensual pornography as a form of harassment, which it is only occasionally, rather than as an invasion of sexual privacy and a form of sexual exploitation, which it always is.”

As a federal criminal law, the amendment also avoids a lengthy debate over section 230 of the Communications Decency Act, which limits the liability of websites for content hosted by users. Section 230 protects sites from civil lawsuits and state laws, but not federal criminal charges. So law enforcement could theoretically prosecute a site whose owner has intentionally solicited and posted non-consensual porn.

But some civil liberty groups have raised concerns about open non-consensual pornography accounts. The ACLU warns that Similar state-level laws could deter journalists from publishing newsworthy images of politicians like Anthony Weinerfor example, or punish booksellers for not verifying the source of a nude image in a publication. (The American Civil Liberties Union (ACLU) explains The edge that it has not taken a position on the SHIELD Act, but it has challenged other bills in recent years.) Depending on how courts interpret ‘reckless disregard’ for a person’s consent or privacy, sharing a nude or sexual image can be risky if you just don’t know where it comes from. The SHIELD Act provision currently facing Congress has an exception for images that touch on “a matter of public interest,” but some people may remain silent rather than risk having to take that case to court.

Legal blogger and professor Eric Goldman, professor at Santa Clara University School of Law, questions whether the bill would meaningfully improve the legal landscape when there are already laws on harassment, invasion of privacy, and other overlapping issues. “What case is it intended to resolve that has not yet been addressed by an arsenal of other laws, especially if there has been a tidal wave of new state-level non-consensual porn laws?” Goldman asked in an interview with The edge“If we really want to solve problems, we have to be very precise about how this tool is additive and responsive.”

As Goldman points out, a federal ban alone wouldn’t penalize perpetrators of non-consensual pornography. The Justice Department should spend time and staff tracking down violators and taking cases against them. “Are they going to spend resources on this?” he asks. If not, law enforcement could use the rule to stack charges against a few chosen targets – but many perpetrators would still be left off the hook.

Then there is the question of whether the laws can withstand constitutional scrutiny. Many non-consensual porn laws have been passed at the state level, but although several courts have examined them, there is still no consensus as to whether they violate the First Amendment. However, the Vermont Supreme Court upheld the law in 2018 the case that tests it was eventually fired. A Wisconsin appellate court came to the same conclusion, like the Illinois Supreme CourtThese courts found “overwhelming” that there is a major interest in protecting the privacy of intimate photos and videos, said Magaldi’s co-author Jonathan Sales, a lecturer at Bentley University.

However, the laws have not been enforced uniformly. An appellate court in Texas shot a law similar to the SHIELD Act in 2018, where it is said that the rule was not modified narrowly enough to avoid potentially chilling effects on free speech. (The law was modified to require an “intention to harm the person concerned.”) And even when laws are enforced, judges have admitted that only the Supreme Court can truly rule on their implications for the First Amendment. The Supreme Court was given the opportunity to investigate a case of non-consensual pornography in 2019, but declined to hear the appeal from a woman convicted under Illinois law.

In the future, if the court makes a case, it will have to consider whether preventing harm to victims involves chilling speech. Unconscious pornography doesn’t clearly fall under an established First Amendment exception – restricted categories such as threats or defamation – and Sales notes that the court rarely creates new exceptions. But courts could still recognize that there is a valid public interest in protecting people’s privacy.

“There is a clear record of people who have been damaged,” says Sales – also through public embarrassment and lost jobs, and in a way that is particularly acute for women, who make up the majority of victims of “revenge porn.” “At the crossroads of this harm people are suffering, there is an imperative government interest to regulate it.”

For the time being, lawyers are mainly concerned with getting the provision into law. The Violence Against Women Act could still be held up by the Senate or the SHIELD provisions dropped in reconciliation. Speier has made multiple attempts to enforce federal non-consensual porn bans, including the SHIELD Act and the ENOUGH Act 2017, but never got a vote. Regardless, Magaldi believes the matter will only get more urgent. “This is exactly like many laws that apply to women,” she says. “It takes people a while to realize that they are important.”