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Revenge Porn’s Tipping Point: Have We Gone Far Enough?

Revenge Porn’s Tipping Point: Have We Gone Far Enough?
via Flickr user Tomas de Aquino

The Internet has brought us many things: The ability to keep in touch with friends near and far. Instant answers to every trivia question. Even a million babies. But the underbelly of the net is vast, and often unregulated.

One area of this dark side is cyber exploitation, more colloquially called “revenge porn.” Revenge porn, in its basic form, involves posting nude or semi-nude photos of people (usually women) without the victims’ permission. An estimated one in ten former partners threaten to post exploitative photos of their exes, and approximately 60 percent of them follow through with the threat.

While the posting of the photos can be in and of itself extremely harmful, the harm is multiplied when the pictures are posted with identifying information such as names and even phone numbers and addresses of the victims. Posting this information can lead to real safety concerns for victims, as well as creating a very 21st century problem: By tying the photo to identifying information, the image becomes searchable. In an increasingly Google-obsessed world – where job applicants, employees, dates, and other potential and current relationships are run through the Google search engine – these photos can lead to financial and emotional ruin. For instance, schools have fired teachers who have had nude pictures appear online, and at least one government agency has fired an employee after nude pictures of her were circulated to colleagues.

A Vicious New Industry

Revenge porn is not new. Most cite the birth of revenge porn as being in the 1980s, when Hustler magazine, in its monthly column “Beaver Hunt,” published nude photos of an unwilling (and unidentified) woman. However, it wasn’t until the last decade that revenge porn really boomed, and that victims’ identifying information has accompanied the photograph.

The most notorious of revenge porn sites (and revenge porn site owners) is IsAnyoneUp, a now defunct site formerly owned by the “most hated man on the internet,” Hunter Moore.  (Moore  became infamous in part for his cavalier attitude on Anderson Cooper when, if asked if he had remorse about his work, he stated “Why would I? I get to look at naked girls all day.”)

The basic form of revenge porn sites, as pioneered by Moore, looks something like this:

Someone - usually a jilted lover, though not always (in some cases, the photos may be illegally hacked or photoshopped) - anonymously submits a photo of a person, usually a woman, without her consent for free through the site’s submission form. The site owner then uploads the photos along with the victim’s identifying information and links to her social media platforms (like Facebook or Twitter) for all to see.

The result? At least for Moore, he garnered 30 million page views a month, and netted roughly $13,000 a month from the site. It was enough to attract copycat sites, like IsAnybodyDown and ugotposted. A revenge porn industry was reborn, on the net.

Is Revenge Porn Legal?

Many states do not explicitly prohibit revenge porn. While some state tort claims like invasion of privacy may be useful against those who submitted the photos to revenge porn sites, they are not so useful against the owners and operators of revenge porn sites because federal law shields owners and operators of websites from liability for most user-submitted content.

While this does not completely shield revenge porn websites from liability, it does make prosecution more difficult. Most often, the owners are prosecuted for violating other laws – like defamation (if the photos were doctored), extortion, identity theft or hacking - not for actually posting the nude photos.

Such is the case with Hunter Moore, who pled guilty to one count of unauthorized access to a protected computer and one count of aggravated identity theft. Kevin Bollaert, who ran a revenge porn site and an extortionist site allowing victims to have their photos removed for a hefty price, was found guilty of identity theft and extortion.

However, until recently, revenge porn site owners were shielded from liability, so long as they restricted themselves to posting only nude photos from third parties, without violating

other laws. As quoted in Slate, Maryland Law Professor Danielle Citron stated “the revenge porn operator who is not an idiot—he’s not engaging in criminal extortion or facilitating hacking—is still sitting pretty. The business model is still viable.”

The Shift

via Flickr user Michael Coghlan

The business model may, finally, be changing. The first anti-revenge porn statute was passed in 2004, but it wasn’t until 2013 when California passed legislation that the flurry of revenge porn legislation began. California’s legislation is fairly typical, and prohibits the distribution of certain intimate photos when the person depicted intended for the images to remain private, the person distributing them knows or should know that the distribution will cause serious emotional distress, and the victim does suffer that distress. Today, roughly half of the states have some form of protection for people whose photographs are unknowingly posted on the internet.

Additionally, in what is being called a big victory against the industry, the Federal Trade Commission recently reached a settlement in its first case against a revenge-porn operator. Although no new law was created because of the settlement, the FTC made clear its view of revenge porn websites in its complaint: They are an unfair and illegal exploitation of personal information shared in confidence for commercial gain. And, more importantly, operators are now on notice that if they continue to exploit this type of information, they could be in serious trouble.

Is the Shift Enough?

While the increased attention condemning and criminalizing revenge porn sites gives hope to its critics, there is still a long way to go before revenge porn would be a thing of the past. There already is a strong backlash against some of them from the American Civil Liberties Union and others who believe the laws go too far. For instance, Arizona’s revenge porn law was recently permanently blocked under an agreement between the ACLU and the state’s attorney general, and many other statutes are being or have been questioned on First Amendment grounds.

In some ways, according to critics, the laws do not go far enough. For instance, the laws generally require that the state prove that the images be intended to “harass or annoy.” A person who posted for other motivations – such as to make money, or in the mistaken belief that the victim would want the pictures posted, or for fun – presumably would not be covered and thus could not be successfully prosecuted.

Power of the Internet

Some victims may be less concerned about criminal sanctions and more immediately concerned about getting their images and information off the Internet. The best bet for victims has been to use the takedown provisions of the Digital Millennium Copyright Act. If the victim took the picture herself (and upwards of 80 percent of revenge porn photographs are selfies), the victim owns the copyright in the photo and, upon a takedown request,

the website is required to take down the photo. (Failure to do so can result in a fine of up to $150,000 per photo.)  The problem with this method is that it is piecemeal: Due to the nature of the Internet, often as soon as one site takes the information down, another site will post it.

Social media companies have worked to prevent the material from being used on their platforms. For instance, Twitter, Facebook and Reddit all prohibit revenge porn, and will take down images that do not comply, upon request of the victim.

In a victory for victims, Google recently announced that it would honor requests from people to remove nude or sexually explicit images shared without their consent from its search results. Although this move will not actually remove the violating photos from the Internet, it will make them much harder to track down and associate with the victim.

While the immediate harm to the victim, in terms of their shame or embarrassment, is not eliminated by these measures (since many may have seen the photos prior to their take down), the long-term absence of these photos on social media and in search engines could prevent or mitigate some of the harm to future employment and social prospects.

Hope for the Future?

Between the flood of new laws opposing revenge pornography, recent decisions sanctioning site operators, the actions of the FTC, and the support of social media and search engines, victims have cause to be hopeful. But the laws are all still very young and untested, and no one knows whether certain statutes will stand up to Constitutional scrutiny, or on the other hand whether the current laws go far enough to solving the problem.

While efforts to prosecute traffickers of these images might stem the tide of revenge porn sites, these images can still make their way onto the Internet easily. While social media sites are beginning to take efforts to prevent the continued dissemination of such photos, the images often remain up for days before the company is able to actually get them down. (For instance, on Facebook it can take up to 48 hours to take down the photo after it has been reported.) This continues to put an enormous burden on the victim to find and track down the photos.

The recent pushback against revenge porn may now have become a tipping point. Larger players acknowledge that this type of behavior is morally reprehensible and contrary to their community standards, and legislatures are enacting laws to protect victims and criminalize profiteering from the practice. Even in states that do not outright prohibit revenge porn, revenge porn operators are taking note: Their own identities and practices are now on full display.