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California lawmakers target 'revenge porn' but miss, critics say

Published: Sunday, Sept. 8 2013 5:25 p.m. MDT

This Jan. 31, 2013 file photo shows state Sen. Anthony Cannella, R-Ceres, at the Capitol in Sacramento, Calif. State lawmakers, including Cannella, are attempting to limit a distressing social media phenomenon known as “revenge porn,” where spurned suitors post real or manufactured intimate photos of their ex-lovers on the Internet for all to see.

Rich Pedroncelli, Associated Press

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It's a growing problem. A woman allows intimate and compromising images to be taken. Out of pique or whimsy, the former paramour later posts them on the Internet, along with identifying information. The woman's online public profile is destroyed, her job searches horribly complicated. She changes her name. Her friends and family are traumatized. In a bad case, she commits suicide.

“Revenge porn has just exploded,” said Erica Johnstone, an attorney in California who specializes in defamation, invasion of privacy, harassment, stalking or impersonation. “My firm alone has handled 10 revenge porn cases since 2009."

In 49 states distributing those images without the victim’s consent is not a crime. In just one state, New Jersey, it is a felony, punishable by up to five years in prison. Florida considered legislation this year, but dropped it. Now it seems California is poised to pick up the baton, running interference for other states.

Or is it?

A bill banning "revenge porn" passed the California State Senate 37-1 earlier this year and is now moving through the assembly.

"It's traumatized real victims," the bill's sponsor, California State Sen. Anthony Cannella, told NBC News. "When we identify a problem, it's our responsibility to deal with it.”

But to skeptics like Mary Anne Franks, a law professor at the University of Miami, Cannella’s bill isn't the answer. Franks believes it would leave many victims unprotected and could, in fact, further victimize them by forcing them to prove trauma in open court.

Opposition to a stronger bill, Franks suspects, is driven by the porn industry. The objections, she said, “just don’t really make sense otherwise.”

Franks would rather see this bill fail and the question be addressed head on. "Just go all the way to the wall,” Franks said. “Have a real bill with real protection, and the people who are uncomfortable with it need to come out and put their faces and their names behind their objections."

A narrow bill

The current Cannella bill would only have teeth if the one who recorded the image "subsequently distributes the image taken, with the intent to cause serious emotional distress, and the other person suffers serious emotional distress."

If an ex who acted simply on whimsy, braggadocio or for money rather than from a desire to injure, the proposed law would do nothing, said Eugene Volokh, a UCLA law professor — nor would it do anything for a victim who had taken the image herself.

“I think it’s kind of strange,” Volokh said. “I think it’s good that they are trying to be narrow, but here the narrowness seems somewhat odd.”

Franks and Volokh agree that legitimate concerns, protecting publicly significant speech, could be handled with careful drafting, but this bill does not move in that direction.

Franks also noted that the bill requires the victim to suffer distress, presumably demonstrating life disruption in court, thus perpetuating the trauma. “This is a crime against the state,” Franks argued, “so the victim should not have to show damages.”

The bill’s supporters, including its author, see the narrowness bill as a virtue, though they struggle to explain why. Vague free speech concerns hang in the air, but no one seems able to flesh those concerns out.

"The bill has been crafted very narrowly to address a new phenomenon," said Jeff Mercedo, a spokesman for Cannella. Mercedo repeated the narrow drafting phrase several times, but he could not explain which free speech issues were in play or how the narrowness of the bill addressed them.

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