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.


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  1. identicon
    sharp as a marble, 27 Nov 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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