Why “Revenge Porn” Is Legal In 48 States

Rights, Relationships

“Revenge Porn,” is a form of cyber bullying that involves the online publishing of intimate photos and/or videos — usually along with contact information — of a person without his or her consent.

This horrifying phenomenon is legal in all but two states. California recently became the second state in the U.S., after New Jersey, to ban the practice, and New York is considering similar action.

“Haven’t I Seen You Somewhere?”

The story of Hollie Toups of Texas was featured in Mashable recently. After being told by several friends and strangers that a website was featuring nude photos of her, she investigated. The site’s homepage showed a map of Texas, where visitors could click on various regions to view individuals pictured on the site. Toups clicked on the southeast portion, where Nederland is located, and saw a picture of her next to 12 other girls from the area. When she expanded the image, her full name, a map with her home address pinpointed, a link to her Facebook page, and a long list of photos appeared. What’s extra creepy is that one of those photos had never been sent to anyone else (like her angry ex-boyfriend who submitted the other photos). The picture she had taken of herself had been hacked from her Cloud.

Toups emailed the website and said that she wanted the photos taken down. After a few days, the site sent her a message back with a link asking for her credit card information for payment — extortion much? Toups and a group of advocates and other victims launched a class-action lawsuit against Texxxan.com and its hosting site, GoDaddy. Less than a month later, GoDaddy shut the site down, citing copyright infringement (and, likely, underage submissions).

State “Revenge Porn” Laws, and Their Differences

In 2004, New Jersey was the first to pass an invasion-of-privacy law aimed at the publishing of nonconsensual, intimate photos. Earlier this month, California lawmakers signed a similar bill. There are large differences between the two, however. New Jersey’s punishes the publisher of the photos, regardless who took the image. California’s new bill, which makes the act a misdemeanor punishable with up to six months in jail and $1,000 in fines, only applies if the individual who distributes the pictures is also the photographer. This means that, in cases where the victim takes a photo but someone else distributes it, the California law won’t apply.

Free Speech and the Ethics of Criminalization

Mary Anne Franks, a law professor at the University of Miami who is helping states draft revenge porn laws, argues that sharing a nude picture with another person implies limited consent similar to other business transactions. “If you give your credit card to a waiter, you aren’t giving him permission to buy a yacht,” Franks said to the Huffington Post.

Lee Rowland, an ACLU staff attorney in New York, was quoted in the same article, saying that self-portraits create a more complex question on the expectation of privacy because the subject shared the image willingly. “You, I think, could pretty easily understand how a law like that could in five minutes turn an entire class of high school seniors into felons,” said Rowland. With free speech, the argument is that both the victim and the perpetrator made a foolish mistake that is hard to take back, and it’s difficult to justify punishing the latter with legal action.