Revenge Porn Site Owner Kevin Bollaert Sentenced To 18 Years In Prison

from the could-Section-230-free-him? dept

As was noted here in early February, a California court found revenge porn site owner Kevin Bollaert guilty of six counts of extortion, along with 21 counts of identity fraud. Bollaert not only ran revenge porn site YouGotPosted but also operated ChangeMyReputation, from which he would remove photos posted to his revenge porn site for a fee.

Adam Steinbaugh attended Bollaert's sentencing last Friday, tweeting out his observations and insights, including fun facts like:

  • Bollaert had $20,000 in cash on him when arrested, apparently from his ChangeMyReputation sideline.
  • Bollaert apparently believed Obama would pass restrictive gun laws that would make certain firearms extra valuable, and began stockpiling weapons. But buying 31 guns using only a P.O. Box for an address has a way of attracting ATF agents…and a conviction for making false statements in connection with the purchase of a firearm.
  • During sentencing, Bollaert's attorneys mentioned the FTC's wristslap of Craig Brittain as an argument that Bollaert deserved a similarly light punishment.
  • The judge quoted an interview with Bollaert where he blew off Marc Randazza's lawsuits.
  • A Cub Scout observed the sentencing.
More than six hours after the proceedings began, the judge handed down Bollaert's sentence. A wrist slap it is not.
Kevin Bollaert was sentenced by a San Diego court to 18 years in prison following his February conviction on twenty-seven counts of extortion and identity theft.
This was much harsher than most people expected, even considering the heinousness of Bollaert's actions. Some expected a lighter sentence coupled with an extended probation period, and Steinbaugh's tweets mention a previous plea deal that was rescinded or rejected. None of that matters now. As Steinbaugh points out, if Bollaert serves every year of his term, he'll be in jail longer than some of his site's victims were alive when their pictures were posted.

The sentence will most likely be appealed. Steinbaugh advances the theory that Section 230 protections could be used to undo the extortion and identity theft charges. (Although he is careful to preface his legal speculations with this warning: "It’s rather boring — and I’m probably wrong, but someone has to raise these issues, even in defense of a revenge porn site extortionist. Only Nixon could go to China, I suppose.")
If Bollaert does appeal, he has a good chance at success with respect to the identity theft charges (assuming Bollaert himself didn’t seek out the victims’ personal information). Simply publishing content submitted by users — even if the avowed purpose of the site was to promote invasion of privacy and tortuous conduct — is immunized by §230.
Whether or not the Section 230 argument will work against criminal extortion charges remains to be seen, but previous civil cases seem to present a few possibilities.
The courts which have addressed extortionate behavior in the civil context have indicated that §230 likely immunizes that conduct. §230 applies to website operators even when they exercise traditional editorial functions.

In Ascentive, LLC v. Opinion Corp., a federal district court in New York addressed consumer gripe site PissedConsumer.com’s “Corporate Advocacy Program”, a “premium reputation management service” under which PissedConsumer would remove negative reviews (if the consumer refused to allow PissedConsumer to act as an intermediary in resolving their complaint) and resolve new complaints before they are posted. The plaintiffs brought RICO claims against PissedConsumer, including predicate acts of “commercial bribery or extortion.” The district court, in denying the plaintiffs’ motion for a preliminary injunction, ruled that the plaintiffs had not demonstrated a likelihood of success on the extortion allegations.
As ugly as it seems, the protections afforded operators of sites hosting user-generated content could keep Bollaert from being incarcerated -- or at least take a huge chunk out of his 18-year sentence. But that's the dual edge of these sorts of protections. Much like the First Amendment protects ignorant, hate-filled racists and the Fourth Amendment protects child porn enthusiasts, Section 230 can protect revenge porn site owners from the content submitted to their sites.

Bollaert's sideline removal service complicates things, but despite profiting from both ends of the equation, the content was posted by others and his extortion-esque secondary business never asked for money to prevent the posting of submitted content, but rather the removal of already-posted photos and contact info. Pure, vile nastiness to be sure, but with enough legal loopholes to potentially jeopardize his conviction.

Additionally, Section 230 protections have previously only served to defend site owners in civil cases, rather than against criminal charges. It's highly unlikely this will be applicable to appealing the criminal charges, but these are state charges rather than federal charges, so this may provide him an opportunity to test California's statutory interpretation of Section 230.

If his conviction is overturned (Steinbaugh believes the state will do everything possible to prevent this) using Section 230 as leverage, we can expect more legislative attempts to gut these protections -- from lawmakers who are content ignore the harm it will cause site owners far more respectable than those trafficking in misery and exploitation simply because the targeted activity is so repulsive.

Filed Under: california, extortion, kevin bollaert, revenge porn, section 230, sentencing
Companies: yougotposted


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  • identicon
    avideogameplayer, 6 Apr 2015 @ 6:19am

    One thing I haven't seen from this case: was the DMCA invoked anytime in this situation?

    As much I hate to say it, this might've been a case where abusing the DMCA would've been a good thing...

    reply to this | link to this | view in chronology ]

    • icon
      Chronno S. Trigger (profile), 6 Apr 2015 @ 7:19am

      Re:

      While copyright could come into this, I would assume that most pictures uploaded were taken by the person uploading them. That was kinda the point of the website. You get pissed at an ex, you upload nude pictures you took while you were together. The DMCA wouldn't apply to most of the content.

      reply to this | link to this | view in chronology ]

      • identicon
        avideogameplayer, 6 Apr 2015 @ 7:39am

        Re: Re:

        That never stopped anyone before...

        reply to this | link to this | view in chronology ]

      • identicon
        DMCA time..., 6 Apr 2015 @ 4:31pm

        Re: Re:

        "While copyright could come into this, I would assume that most pictures uploaded were taken by the person uploading them. That was kinda the point of the website. You get pissed at an ex, you upload nude pictures you took while you were together. The DMCA wouldn't apply to most of the content."

        No, many pictures would be nude selfies taken by the victims. Sounds DMCA-able to me.

        reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 6 Apr 2015 @ 6:26am

    "from lawmakers who are content ignore the harm it will cause"

    Because getting in-front of the issue with a good soundbite, always trumps common sense law making.

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 6 Apr 2015 @ 6:48am

    Only Nixon could go to China, I suppose.

    Considering how the passage of years has shown what a disaster that was, you'd think Steinbaugh could find a better choice of words...

    reply to this | link to this | view in chronology ]

  • icon
    Dan (profile), 6 Apr 2015 @ 7:42am

    But buying 31 guns using only a P.O. Box for an address has a way of attracting ATF agents…and a conviction for making false statements in connection with the purchase of a firearm.

    The interesting thing about this is that it says right on the federal form that PO Boxes aren't allowed. The dealer should never have allowed those transactions to proceed in the first place, and the instant background check system should have flagged it even if the dealer missed it.

    reply to this | link to this | view in chronology ]

    • identicon
      Ronbo, 6 Apr 2015 @ 8:53am

      Re: PO Box

      Most likely it was a box at a third party service like a UPS store. Those stores tell you to specifically not address mail as "P.O. Box XXXX", because only the USPS is allowed to use that (perhaps a trademark issue, I don't know the reason).

      There is a database of mail service addresses, used for credit checks, so it's possible the instant background check system could catch it, but they may or may not be using it.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2015 @ 7:56am

    So it was mostly because of the extortion thing?
    As expected, most people simply dont give a fuck about "revenge porn". I certainly wouldnt care if someone seen me in one of those. Natural thing, everyone is doing it. The only people who should be ashamed are those who make a big deal of it.

    reply to this | link to this | view in chronology ]

  • icon
    Adam Steinbaugh (profile), 6 Apr 2015 @ 9:32am

    One minor correction -- it was Bollaert's counsel (not the prosecutors) who brought up Brittain's lack of punishment.

    Bollaert was trying to make two related arguments with this: (1) that he believed his conduct to have been lawful (which would be a mitigating factor in sentencing) because two people (Brittain and Hunter Moore) had been all over the national news boasting about their sites without being charged; and (2) that Brittain's slap on the wrist from the FTC and Moore's potential sentence were comparable cases that the judge should use in determining what sentence Bollaert should get (i.e., probation or a few years' incarceration, but nowhere near the maximum.)

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 6 Apr 2015 @ 11:45am

      Re:

      One minor correction -- it was Bollaert's counsel (not the prosecutors) who brought up Brittain's lack of punishment.


      Just made this correction since Tim is out for the day...

      reply to this | link to this | view in chronology ]

  • identicon
    Zonker, 6 Apr 2015 @ 1:46pm

    While I agree that Section 230 may protect against the identity theft charges if he wasn't the poster of the content or impersonating any of the victims, I disagree on Section 230 covering the extortion claim. In that case, Bollaert was the one running the removal service and the hosting service and was given proper notice of specific postings that may not have been legal. Rather than removing the content on receiving notice, he demanded money to do so.

    Section 230 may provide him protection from civil liability in this case, but I do not believe that if protects him from criminal liability:
    (e) Effect on other laws
    (1) No effect on criminal law
    Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.
    (2) No effect on intellectual property law
    Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.
    (3) State law
    Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section.
    No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
    (4) No effect on communications privacy law
    Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.
    Emphasis mine. He was on notice that specifically identified content may be unlawful and he demanded money for its removal from a site he owned. If his own conduct fits the criminal definition of extortion, then I don't think that Section 230 protects him any more than it would if it were child porn (which some of the posts on his site allegedly are).

    Just my humble opinion. IANAL.

    reply to this | link to this | view in chronology ]

  • identicon
    Agonistes, 6 Apr 2015 @ 7:40pm

    Different Angle

    Take a different perspective on this case to highlight how ludicrous this is: instead of people in sexual acts being displayed and the webmaster asks for money to have the removed, these were pictures of people caught in the act of going off the rails with the most heinous, despicable, racist, misogynist rant about how they like to eat the fresh limbs of newborns for fun. Then an acquaintance takes those vids which they possibly knew were being made of them (or not) and finds a website just like this scumbags' (except the guy hosting this imaginary website is a social activist bringing to light all the closet bigot baby-eaters so they can be recognized and marginalized) that hosts stuff like that so they are up for everyone to see to shame them for their insensitivity and unpopular views...and to get recompense for the "cause" by asking for cash to pull the vids. So, the baby-eating ranter finds out and is embarrassed and distraught just as if these were the actual sexual content of the actual vids.

    That's a little more convoluted than I wanted (lol) but would people be as outraged and so quick to want the federal government to step in and see to it that all the myriad of lecherous, racist, misogynist, (alleged) baby-munching, wearing-white-after-labor-day dickheads got justice for what the webmaster did...which he was not the perpetrator of in the first place all while the many, actual culprits of each single video's creation and subsequent posting face no consequences? In neither of those scenarios do I find anything illegal being done. It isn't illegal to be the social equivalent of that film buildup on month-old unbrushed teeth nor does how emotionally jarring and empathetic the victims seem to observers or how disgusting and mercenary his attitude is towards the effect his actions facilitated caused comprise a crime - remember, he didn't produce or choose these videos to host...the ones buying his services did.

    Am I way off base here and if I am, explain why. I'm really curious.

    reply to this | link to this | view in chronology ]

    • identicon
      Banghouse, 8 Jun 2015 @ 2:14pm

      Re: Different Angle

      No you're not way off base, you're right on the money!
      I'm trying to figure out how does this case differ from ripoffreport.com. They do the exact same thing minus the photos.

      reply to this | link to this | view in chronology ]


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