Law Prof Writing Revenge Porn Legislation Wants To Upend Safe Harbors On The Internet 'For The Children'

from the let's-nuke-the-internet-to-kill-that-one-thing dept

It's pretty much universally accepted that "revenge porn" is a bad thing and that steps should be taken to prevent the posting of someone's private photos (usually along with contact info) at various websites that entertain the small minds that find this cathartic or fascinating or hilarious (and, of course, it's even worse that many of these sites then try to charge people to take down their photos).

Unfortunately, because it's so thoroughly reviled, attempts to curtail revenge porn tend to be poorly thought out. One bad law can do an awful lot of collateral damage -- something those actively pushing legislative solutions tend to forget in their hurry to rid society of unpleasantness.

Mary Anne Franks, a law professor at the University of Miami, has been pushing to get revenge porn criminalized. To that end, she is helping draft a bill with an (unnamed) member of Congress. The problems with her proposed legislation are several. Houston defense attorney Mark Bennett has unpacked the First Amendment implications (mostly negative) of her proposed law in two excellent and thorough posts over at his blog, Defending People.

A overly-simplified reduction of Franks' arguments in favor of the proposed law boils down to this: because it's unpleasant and most people would find it offensive, it isn't protected by the First Amendment. Bennett disassembles each point she makes and they all seem to come back to this.

Franks: "The First Amend­ment does not serve as a blan­ket pro­tec­tion for mali­cious, harm­ful con­duct sim­ply because such con­duct may have an expres­sive dimen­sion. Stalk­ing, harass­ment, voyeurism, and threats can all take the form of speech or expres­sion, yet the crim­i­nal­iza­tion of such con­duct is com­mon and care­fully crafted crim­i­nal statutes pro­hibit­ing this con­duct have not been held to vio­late First Amend­ment prin­ci­ples. The non-consensual dis­clo­sure of sex­u­ally inti­mate images is no different."
There is a world of dif­fer­ence between “The First Amend­ment does not serve as a blan­ket pro­tec­tion for mali­cious, harm­ful con­duct” and “mali­cious, harm­ful con­duct is unprotected.”

Franks makes a num­ber of such asser­tions as “the non-consensual dis­clo­sure of sex­u­ally inti­mate images is no dif­fer­ent,” but stamp­ing her foot and insist­ing that it’s so doesn’t make it so. Even if a law pro­fes­sor is inca­pable, a com­pe­tent lawyer can always find a dif­fer­ence between two things. One impor­tant dif­fer­ence between the dis­clo­sure of sex­u­ally inti­mate images on the one hand, and the con­duct of harass­ment, threats, and stalk­ing on the other, is that a statute for­bid­ding the for­mer is nec­es­sar­ily content-based, so it must meet strict scrutiny.

“It’s kinda like harass­ment” doesn’t over­come the obsta­cle of strict scrutiny, espe­cially since the Supreme Court has never upheld a crim­i­nal harassment statute.
As Bennett details, Franks has approached this largely in the "activist" role, rather than a scholarly role. In doing so, she's made arguments current case law just doesn't back up. That itself is problematic considering she's working with a Congress member to draft a law that will address an already-emotionally charged issue.

But it gets worse. Scott Greenfield points out a recent interview Franks did with US News and World Report, where she makes this troubling statement.
Websites that specialize in revenge pornography cannot currently be forced by state law to remove content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn't violate federal copyright or criminal law.

"A lot of companies are under the impression they can't be touched by state criminal laws," Franks said, because "Section 230 trumps any state criminal law."

The Communications Decency Act, however, doesn't trump federal criminal law, she said, pointing to child pornography.

"The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations."

"Hopefully," she said, "we would develop a similar take-down notice regime that we see in a copyright context, which means that anytime a victim becomes aware that [their] picture is on one of these websites without their consent, [they] can notify the website, [they] can notify Google, [they] could notify all the people inadvertently helping the image get shown... that this is nonconsensual material and needs to be taken down."
Having earlier questioned how long it would take Section 230 to fall in the face of anti-revenge porn efforts, Greenfield now has his answer.
Well, that didn’t take long at all. In their zeal to end revenge porn, which no one disputes is a blight on the internet, Franks and her ilk are more than happy to destroy free speech on the internet. After all, what’s free speech when compared to their feelings?
The US News article also contains quotes from Matt Zimmerman, senior staff attorney at the EFF, who logically points out that targeting intermediaries by bypassing (or removing) Section 230 protection is a terrible idea and will inflict collateral damage all over the internet. As he points out, companies will simply remove user content as quickly as possible whenever requested rather than be held legally or criminally accountable for hosting it. Additionally, there's a good chance some platforms and hosting services will simply shut down altogether rather than have to play internet police 24/7.

Franks "rebutted" Zimmerman's assertion, but from an oblique angle.
I do want to point out that neither the EFF nor the ACLU has expressed opposition to any specific law that I have personally drafted. I have sent my draft statutes to members of both organizations and am awaiting their responses.
Well, if the EFF and ACLU don't think it's a bad idea… Oh, wait. That's not what she actually said. Greenfield breaks it down.
Notice the attempt to weasel out of reality, “any specific law that I have personally drafted”? Franks neglects to mention that she sent an email to an EFF non-lawyer advocate, who was never an appropriate person to contact and who didn’t respond to her personal email, and has tried to parlay this by claiming these organizations don’t oppose her, in a deliberate effort to mislead.
Franks is looking to do some serious damage to free speech with her proposed law. While it could be theorized that courts will buy her arguments about what the First Amendment does and doesn't protect (troubling in its own way), this proposed attack on Section 230 Safe Harbor is bad news no matter how you look at it. The fact that she brings up child pornography is another indication that advocating for this law has very little to do with ensuring standing protections remain as unscathed as possible.

Politicians and special interest groups have often used "for the children" as an excuse for all sorts of legislative havoc. After all, who's going to defend child pornography? It's a disingenuous rhetorical tactic that equates Pet Issue A with The Worst Thing on the Internet in order to paint opponents as child porn sympathizers. But as Greenfield says, what are rights compared to feelings? Revenge porn is bad, and those arguing against legislative measures like Franks' are frequently portrayed as misogynists trying to ensure their abuse of women continues uninterrupted. Here's Franks herself on the subject:
But then there’s a whole category of people who aren’t confused at all – let’s call this the “threatened sexist” category. To explain this, we have to back up a bit and take note of the fact that non-consensual pornography, like rape, domestic violence, and sexual harassment, is overwhelmingly (though of course not exclusively) targeted at women and girls. So you get some people who might cynically invoke the First Amendment or raise disingenuous questions about scope, but who are really just hostile to anything that makes it harder to treat women as second-class citizens, especially when it comes to sex.
There's also some indication that Franks, like many others who aggressively advocate for laws that will fundamentally alter the way the internet runs, doesn't have a solid grasp on the very area she's attempting to regulate. She makes the following statement, which follows shortly after her above assertion that opponents will make "cynical arguments" about the First Amendment.
These are people who fully understand that a great number of our personal, social, and legal interactions are premised on the idea of contextual consent. They would never argue that a customer who gives his credit card to a waiter has given the waiter the right to use that credit card to buy himself a motorcycle. They would never argue that the fact that a person voluntarily gave personal information to a cellphone gives that provider the right to hand that information over to, say, the NSA.
As commenter Ken Arromdee points out, this statement is beyond obtuse.
You do realize that this is known as the third party doctrine, and is the actual reason used to justify government spying, right?
Greenfield asks when other law professors are going to step up and call Franks out for her bullshit. The answer, sadly, may be "never." Franks' own statements show she's more than willing to call any opponent a misogynist, something that can easily spell the end of an academic career. No one in this field is in a hurry to get smeared as a revenge/child porn proponent. Even more discouraging -- if this legislation ever hits the floor for a vote -- very few politicians will be willing to oppose this and end up labeled misogynist or simply "soft" on revenge porn, no matter how damaging the outcome will be for the First Amendment and the Section 230 Safe Harbors.



Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Nov 27th, 2013 @ 8:54am

    anyone able to explain how these people become 'Law Professors'? certainly in this case, there appears to be very little knowledge or interest in adhering to any law! but then, maybe, that's why the 'unnamed senator' is so keen to have this particular person drafting the bill. when shit hits fan, it wont be he/she that gets splattered quite as much as the writer.
    if he/she really wanted to fuck things up, using 'the children' as the excuse, she should get in touch with Perry and Cameron in the UK. they have used little in the way of sense, even common sense, to achieve copyright infringement and web site blocking by instigating the 'we must think of the children' bit!

     

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    S. T. Stone, Nov 27th, 2013 @ 9:13am

    Hmm. Between this and the NSA’s plan to embarass people by exposing their porn-viewing habits, the US government looks more and more as if it wants to make an end run around the First Amendment in order to ban porn of all kinds.

     

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      Pragmatic, Nov 28th, 2013 @ 5:41am

      Re:

      You're half way there, S. T. Stone. The authoritarians want to get rid of porn, but also want to undermine the Bill of Rights and the Constitution itself.

      We need to expose them and boot them out in the next election.

       

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    Bill, Nov 27th, 2013 @ 9:15am

    People just need to remember do not do anything you do not want the entire world to see.

     

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      Anonymous Coward, Nov 27th, 2013 @ 11:20am

      Re:

      If you guys want to watch me jack off idc. I believe that is what I said from the beginning... or you could give me my privacy and not. Up to you

       

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    Anonymous Coward, Nov 27th, 2013 @ 9:18am

    Surely there is a way to distinguish between Google and sites that are devoted to revenge porn.

    I also wouldn't have a problem with a notice and takedown system for revenge porn if you could demonstrate it's you in the video, where liability is only faced after failure to comply to legitimate requests.

     

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      Anonymous Coward, Nov 27th, 2013 @ 3:18pm

      Re:

      Here are some scenarios that this doesn't cover.

      Revenge porn can be just about any sexual thing, from you being exposed in a Nazi party with hookers(political scandal) to a fan of Bieber posting photos of him sleeping in his hotel bed/

      Hardcore stuff may be easy but there are other shades of grey out there that would be also be made illegal, you no longer would be able to expose bestiallity acts that offend others, could a rapist force others to remove his photos from public and takedown?

      You know he is being after all being harassed for having had sex and somebody posted his photos there.

      Those laws look cool and fine until you look at the real shite that goes on and realize that a lot of crap would be included and even ones that people really object too.

      This laws could give real pedophiles the tools they need to bring down other laws, they could takedown the government websites on those claims.

      People should be preocupied not how the law will be used by mostly honest people but exploited by real crooks and criminals.

       

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    Anonymous Coward, Nov 27th, 2013 @ 9:24am

    They need to turn this around on her and call her out for using children as a bullet shield for her pet law. Hiding behind children and all that.

     

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    TJ, Nov 27th, 2013 @ 9:53am

    ?

    Something tells me photos of her turned up on a revenge site.

     

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    Anonymous Coward, Nov 27th, 2013 @ 9:55am

    Revenge porn is terrible and should be outlawed. However the people who need to be liable are the producers and the knowing distributers... not unknowing 3rd parties...

     

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    OMG__Ponies (profile), Nov 27th, 2013 @ 10:05am

    “The state must declare the child to be the most precious treasure of the people. As long as the government is perceived as working for the benefit of the children, the people will happily endure almost any curtailment of liberty and almost any deprivation.”

    Adolf Hitler -Mein Kampf,

     

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      Anonymous Coward, Nov 27th, 2013 @ 11:01am

      Re:

      There's no 'win' like Godwin...

       

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    •  
      identicon
      Anonymous Coward, Nov 27th, 2013 @ 11:23am

      Re:

      And this is why it's critical that you read Hitler, and Goerring, and bin Laden, and every other author whose words and conduct and very person you might despise: you must understand them in order to beat them.

       

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        Pragmatic, Nov 28th, 2013 @ 5:48am

        Re: Re:

        you must understand them in order to beat them.


        Damn straight, AC. Add Marx, Lenin, and Mao to the mix. Pretentious and polemic or not, we need to understand those guys too. And that there is not a choice between only one group or the other. The answer is probably somewhere in the middle and as far away from authoritarianism from either side as possible.

        Once we've figured that out we'll realize the beauty of thinking for ourselves. Unfortunately, many of us feel obliged not only to take sides with extremists of one stripe or another, but to make others do so, too. Let's not do that.

        Even crap has its uses. Look for the grain of good in everything and don't be too quick to throw the baby out with the bathwater.

         

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    •  
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      Anonymous Coward, Nov 28th, 2013 @ 1:53pm

      Re:

      Hitler didn't say that

       

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    Not an Electronic Rodent (profile), Nov 27th, 2013 @ 10:07am

    Or...

    "Hopefully," she said, "we would develop a similar take-down notice regime that we see in a copyright context
    "Hopefully," she said in paraphrase, "we would get the same kind of take-down system that's been properly shown to not work and be open to all sorts of gratuitous abuse in a copyright context and if we're really luck the sanctions for abuse will be just as toothless."

     

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    That One Guy (profile), Nov 27th, 2013 @ 10:13am

    What's good for the goose

    So, given I'm offended by those that think their hurt feelings gives them the right to trample all over the rights of others, by her logic that means her entire net presence needs to disappear, right?

     

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      Rikuo (profile), Nov 27th, 2013 @ 10:20am

      Re: What's good for the goose

      I'm sorry, but you fail. Your mistake was in trying to apply logic to a thought/belief that outright rejects it. It's like trying to have matter/anti-matter tough each other without destroying each other. Can't be done.

       

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        That One Guy (profile), Nov 27th, 2013 @ 11:08am

        But that's the nice thing, I'm using her 'logic', where being offended by something is cause for it to be taken down, rights be damned, so any objections she might have to it would apply equally well against her argument as well.

         

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    Anonymous Coward, Nov 27th, 2013 @ 10:33am

    You don't nuke a city to clear out a broken building. There is obviously a hidden agenda here.

     

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    sharp as a marble, Nov 27th, 2013 @ 10:51am

    I dont understand why this is such a huge issue. if a girl takes a picture of herself and sends it to her inevitable ex then she retains the copyright to said image and can just issue a dcma over it to the website. hosting companies are generally over zealouse to abide by said dcma. if the ex created the works in question then he has the right to post said pics. I am sure many pornstars regret their past. we should be advocating for self responsibility not more overreaching punishments.

     

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    Todd Knarr (profile), Nov 27th, 2013 @ 11:27am

    The thing is, most of the problem sites can easily be shown to not have Section 230 immunity. They don't just host the content, they actively solicit for exactly the kind of content they should know isn't legal. It's exactly the same as a site that actively solicits pirated material, as opposed to a site that only actively solicits for legal material and might be used for infringing stuff (eg. "Host your warez and pirate rips here." vs. "Host your own personal files here."). You should be able to use the site's own advertisements and promotional material against it.

    And no, as far as I know non-consensual disclosure of sexually-explicit material for the purposes of harming the subject isn't legal. It's not a crime, but it's a civil violation that the victim has a right to sue over. Actively soliciting for people to do it is in the same category as actively soliciting people to violate their non-disclosure or confidentiality agreements and provide you with confidential/secret information from their employers.

     

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      That One Guy (profile), Nov 27th, 2013 @ 12:01pm

      Re:

      If the content or sites aren't legal, deal with them via laws already in place, don't invent new laws that will have massive negative repercussions against other speech.

      If the content is legal, then even if it's offensive, free speech takes priority, as it's more important.

       

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    Spaceman Spiff (profile), Nov 27th, 2013 @ 11:56am

    The road to Hell

    The road to Hell is paved with good intentions. Obviously this professor has good intentions, but she is not analyzing the follow-on effects of such legislation as she was (hopefully) taught to do in law school.

     

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    Chris Brand, Nov 27th, 2013 @ 12:15pm

    Examples she uses

    "Stalk­ing, [and] voyeurism, [...] can all take the form of speech or expres­sion" - really ? I'm having a very hard time seeing how stalking or voyeurism could take the form of expression. The other two examples she uses, sure, but these two ?

     

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      That One Guy (profile), Nov 27th, 2013 @ 12:22pm

      Re: Examples she uses

      The 'performance art' when someone doing those things gets caught and tries to pass it off as something else?

      Yeah, I don't get it either.

       

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    Anonymous Coward, Nov 27th, 2013 @ 12:32pm

    Irony or cognitive dissonance?

    All these people who push for bad laws/want to repeal good laws "for the children" are doing a perfectly fine job making this country a place I wouldn't want to raise a child in.

     

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    ricebowl (profile), Nov 27th, 2013 @ 2:54pm

    For the..?

    Y'know, in light of all these things we're doing 'for the children' I'm beginning to wonder if anyone's actually asked them what they want.

    I very much doubt that what they want is what's being given in their names. I strongly suspect that it is, in fact, 'for the parents' (votes).' Which is definitely not the same thing.

     

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    Anonymous Coward, Nov 27th, 2013 @ 3:23pm

    So if political figures or any famous person is found in the middle of a sex scandal like I dunno the Pink Floyd guy that is being accused of molesting a child be able to takedown any reports on it, because you know that law framework there is ripe for abuse by real sexual predators that could use this to takedown their own sexual stuff from the internet.

    Is Mary Anne Franks trying to protect pedophiles and rapists from having their wrongs exposed?

     

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    Mason Wheeler (profile), Nov 27th, 2013 @ 3:39pm

    If you can't beat them...

    This makes me wonder. This is obviously a very effective strategy, but why is it only ever effective for the bad guys? Why not turn it around on them?

    Is there any way we could start spreading around the message "if you're a copyright maximalist and you don't support the fundamental rights of Internet users and computer owners, you're a child-porn-producing terrorist"?

     

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      Pragmatic, Nov 28th, 2013 @ 5:51am

      Re: If you can't beat them...

      Just keep repeating it over and over again till everyone believes it, Mason.

      Start with a credulous, cheering audience, then keep going till it's accepted as a mainstream belief.

      Hell, it works for the maximalists.

       

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    Digitari, Nov 27th, 2013 @ 6:20pm

    The big question is.....

    is this chick hot or what??




    (Sorry I just could not help myself)

     

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    Rekrul, Nov 27th, 2013 @ 8:59pm

    The US News article also contains quotes from Matt Zimmerman, senior staff attorney at the EFF, who logically points out that targeting intermediaries by bypassing (or removing) Section 230 protection is a terrible idea and will inflict collateral damage all over the internet. As he points out, companies will simply remove user content as quickly as possible whenever requested rather than be held legally or criminally accountable for hosting it. Additionally, there's a good chance some platforms and hosting services will simply shut down altogether rather than have to play internet police 24/7.

    How is any of that "collateral damage"? Having content taken down immediately upon request and entire sites/services shutting down rather than hosting user content is the entire goal of this bill.

     

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    Anonymous Coward, Nov 30th, 2013 @ 1:58pm

    This is the part where i usually try to make a somewhat witty comment but I'm at a loss after reading this law professors blog , i see it's not the actually context of her writings shes defending its her ego.. it seems her professors failed to teach her humility and the art of being humble

     

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