National Edition

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.

Weak opposition

Adding to the confusion was a May 30 letter from the American Civil Liberties Union opposing the bill sent to Canella.

The ACLU letter cited a 2011 lower court decision that, Johnstone argues, has little relevance to revenge porn. "The ACLU's statement reveals how weak the opposition actually is," she said.

"There is no First Amendment right to invade the privacy of a private person regarding a private matter for no legitimate public purpose," she said.

"There is a voyeuristic interest in viewing sexually explicit, private images of women and girls," Johnstone added, "But that doesn't make it a legitimate interest that is protected by the First Amendment.”

Contacted for a response, Will Matthews, a spokesman for the ACLU of Northern California, said that the ACLU had no objections to the bill, but he could not offer any explanation for why the initial objection letter was sent, nor what changes in the bill altered their viewpoint.

In short, neither the senator's office nor the ACLU could offer any explanation for the free speech issues that the bill seeks to avoid, nor the specific steps taken to address them.

Intrusion upon seclusion

There is no controlling case law in this arena, said Volokh, and the Supreme Court has never confronted the issue. But he doubts that the courts would support a First Amendment claim to distribute graphic photos of a former lover.

Volokh points to two related principles in common law, causes of action for civil damages. One is the tort of "intrusion upon seclusion." That tort states that someone who "intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns" can be held liable "if the intrusion would be highly offensive to a reasonable person."

The other related tort is “public disclosure of private facts,” which allows a victim to sue for damages after the “dissemination of truthful private information which a reasonable person would find objectionable.”

"When it comes to something as private as one's appearance naked or having sex and is as unrelated to any public debate, I think the court would likely say this [criminalizing revenge porn] is permissible," Volokh said.

Any legitimate concerns about the public interest — such as an Anthony Wiener incident involving credibility and public office — could easily be addressed in drafting the bill, Volokh said.

New Jersey model

The current model for strong privacy protection is New Jersey, which back in 2004 adopted an aggressive privacy statute, which was later used to obtain a conviction in 2011 when a roommate used a webcam to film a student without his knowledge or consent. The student later committed suicide.

But because the webcam in that case was used without the victim’s knowledge, it did not involve a key clause in that same statute. That clause makes it a third degree felony if anyone, without consent, "discloses any photograph, film, videotape, recording or any other reproduction of the image of another person" that exposes "intimate parts" or shows sexual contact.

For now, New Jersey is the ideal model, Franks said, though she notes that Wisconsin has a bill in the works that she believes is actually somewhat better than New Jersey's.

Names and faces

"What we are being told right now by California," Franks said, "is, 'Just support the bill for now and we can go back later and amend it.' " But it is clear that she smells a rat. She describes a similar cycle in Florida, where the Legislature debated and then ultimately dropped legislation.

"I didn't agree with that for principled reasons, but I'm also starting to think that it doesn't work for strategic reasons," Franks said. "What happened in Florida is that the bill died anyway."

The problem, Franks argues, is that in attempting to appease "First Amendment" concerns that never quite come out of hiding, you muddle the issue in the public mind and legitimate opposition that has no real ground to stand on.

"I don't like trying to appease objections that I'm not even sure exist," she added. "I'd really rather see full debate of any legitimate objections rather than deal with this kind of subterfuge."

Email: eschulzke@desnews.com

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