Federal Revenge Porn Bill Not As Bad As It Could Have Been, Still Probably Unconstitutional

from the just-saying dept

For the last two and half years or so, my Congressional Representative, Jackie Speier, has insisted that she was just about to introduce a federal law outlawing revenge porn. And then it wouldn't come. There would be an article saying it was almost ready... and then nothing. Months would go by, another article would appear... and then nothing. Finally, on Thursday, Speier introduced the bill, insisting that the delay was in convincing Silicon Valley companies to sign on to it. Of course, that leaves out the fact that the reason many refused to sign on was because previous iterations of the bill were incredibly problematic and almost certainly unconstitutional. With two and half years to work on it, however, the finally introduced bill, called the Intimate Privacy Protection Act of 2016, or IPPA, is not nearly as bad as it could have been, nor as bad as some of the suggestions passed around by those who "consulted" on drafting the bill.

But that doesn't mean the bill isn't unconstitutional.

Let's be clear: revenge porn is horrific. The creeps who put up revenge porn sites deserve to be shamed and mocked. The people who actually upload images to such sites or visit them are complete losers who need to get a life. But there are really important legal issues that come up when you try to outlaw such things, starting with the First Amendment. Yes, yes, as everyone will say, there are some exceptions to the First Amendment (though if you claim that shouting fire in a crowded theater is one of them, you're going to be mocked as well). But the exceptions to the first First Amendment are very narrowly prescribed by the Supreme Court, and they're much more narrow than most armchair lawyers believe. Looking over the list, it's pretty difficult to see how revenge porn fits.

Next up, context matters a lot, and while the bill tries to take some of that into account, it's unclear if it actually succeeds. The bill has a vague and nearly totally undefined "public interest" exception -- but what does that actually include? That's left unclear. Remember last year when Lenny Kravitz accidentally exposed himself at a concert. Was everyone who passed around videos of images of that violating this new revenge porn bill? It would seem so. That would be "knowingly" using an "interactive computer service... to distribute a visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image... of the naked genitals... of a person, with reckless disregard for the person's lack of consent to the distribution."

Remember, tons of people were passing around that image and video last year. Should all of them face five years in prison plus fines? That seems... extreme. And extremely problematic.

The ACLU has a rather simple request to fix this problem with the law: add an intent requirement, such that it only applies to those who "maliciously and intentionally invade another person's privacy." Even that may have some First Amendment issues, but supporters of the law refused to add an intent standard, claiming that such a standard would be too limiting, and wouldn't cover those who weren't motivated by "malice" but by money or fame. But, that's ridiculous. Any court would likely decide that setting up a revenge porn site for money was a form of malice.

Thankfully, this version of the law says that it does not apply to online platforms, as defined by Section 230 of the Communications Decency Act, which is a big jump from where some of the crafters of this bill were a few years ago, in which they openly discussed undermining CDA 230 as a way to attack revenge porn.

In the end, two and a half years of effort means that the bill isn't as horrible as some of the earliest suggestions, but it's still not clear that it's constitutional. It seems likely that the ACLU, and possibly others, will likely challenge this law should it pass and then I guess we'll find out what the courts actually think of it.

Filed Under: first amendment, free speech, jackie speier, revenge porn


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  • identicon
    Going Blind Justice, 15 Jul 2016 @ 11:02am

    First Amendment Again?

    Please get a law degree then try again. The First Amendment has a lot of exceptions which deal with breaking laws. It is not a license to say or do whatever you want -- including shouting fire in a crowded auditorium.

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

  • identicon
    Sadalbari, 15 Jul 2016 @ 11:26am

    An Anti-porn Bill in Disguise

    That would be "knowingly" using an "interactive computer service... to distribute a visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image... of the naked genitals... of a person, with reckless disregard for the person's lack of consent to the distribution."

    That sounds like something a prosecutor could use to go after someone who distributes pictures of naked people without signed releases. I was watching a film about Woodstock '69 the other day and it showed some people walking around naked in it. Will that footage become illegal? "No signed release? No verified ID? That's reckless disregard! Off to prison with you!"

    Of course, verified ID's and signed releases are something the commercial porn industry does as a normal part of business. I can imagine them welcoming something like this to reduce competition from non-commercial sources.

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

  • icon
    Blaine (profile), 15 Jul 2016 @ 11:46am

    Read the title wrong

    My first thought was, "Wow, how much porn do the federal reserve people watch to generate a bill big enough to make the news?"

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

  • icon
    Anarres (profile), 15 Jul 2016 @ 12:31pm

    What means promote or solicit content?

    "unless such provider intentionally promotes or solicits content"

    CDA excludes any services providers, and there is no explicit exception for "promoting" content, even if that content may be otherwise considered defamatory or whatever. The introduction of "promotes or solicits" in this law limits that. Is a provider "promoting" if their website has a rating systems for users to vote posts up? Is it "promoting" if they have a Recent Posts section where the content appears briefly?

    I think "promotes" and "solicits" is due to courts decisions where certain activities of providers make them contribute materially to the content. But promoting and soliciting don't seem to be in CDA. In the words of CDA, only these activities make internet service providers be "information content providers" in the same time:
    The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

    Promoting is not the same with responsible for the creation or development of content.

    These terms do sound familiar to me though, I just don't recall where in the hundreds of cases they were discussed. Anyone has a pointer to precedents where "promoting" or "soliciting" were in relation with CDA 230?

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

  • icon
    crade (profile), 15 Jul 2016 @ 2:59pm

    "Should all of them face five years in prison plus fines?"

    Thats the way most legal systems seem to work, make everyone technically a criminal, but don't prosecute them all. That way you can pick and choose whoever you want to actually throw in jail based on whatever criteria you choose.

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

  • identicon
    Freedom of Speech and Press: Exceptions to the Fir, 16 Jul 2016 @ 1:25am

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

  • identicon
    Justin Otter Post, 16 Jul 2016 @ 9:02am

    Slippery Slopes

    All porn could be pushed as revenge porn by anyone. Or it is at least as likely you would have to have extremely deep pockets to prove it isn't if you are pestered by someone with a wild hair up their arse. And in this day and age of due process violations happening as a routine occurance in courts all over the place, its very likely that anyone crying witch could give hell to anyone they want.

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

  • identicon
    Anonymous Coward, 17 Jul 2016 @ 8:49am

    Is Lenny Kravitz's junk bona fide public interest? Prove it.



    Suppose Lenny is a 15 year old girl, what then?

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

  • identicon
    Anonymous Coward, 18 Jul 2016 @ 11:51pm

    Don't worry people. Huffington post says it doesn't apply to anyone who had no way of knowing that the person depicted did not consent to the distribution. In other words 'business as usual'. Remember to plead ignorance.

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

  • identicon
    Anonymous Coward, 19 Jul 2016 @ 12:12pm

    Maybe not having written consent means non-consent automatically.

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

  • identicon
    Anonymous Coward, 20 Jul 2016 @ 2:02pm

    Eldred v. Ashcroft

    “The First Amendment securely protects the freedom to make -- or decline to make – one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.”

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


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