Senator Kamala Harris Serves Up A Not-Completely-Terrible Revenge Porn Bill

from the Oscar-season-but-for-pet-projects dept

Senator Kamala Harris -- famous here mostly for her constant, Quixotic attempts to turn Backpage into a criminal defendant -- is now crafting laws at the federal level. Her support for the internet-crippling SESTA is already known. Her next target, apparently, is revenge porn purveyors.

Harris' bill [PDF] will likely be remembered more for its too-clever acronym than its content. The ENOUGH Act of 2017 (brace yourself: Ending Nonconsensual Online User Graphic Harassment) is another attempt to criminalize revenge porn at the federal level. The problem is the subject matter is slippery and difficult to nail down precisely enough to avoid First Amendment concerns.

The bill does make an attempt at narrowly crafting a definition and at least tries to limit the liability of platforms hosting user-generated content, but it still has some issues. For one, the definition of images covered by the act is a bit too vague to prevent the possible criminalization of harmless images.

The term ‘intimate visual depiction’ means any visual depiction (as that term is defined in section 2256(5)), in original or modified format, of an individual who is reasonably identifiable from the image itself or information displayed in connection with the image, in which—

(A) the individual is engaging in sexually explicit conduct; or

(B) the naked genitals or post-pubescent female nipple of the individual are visible.

The non-consensual sharing of photos of men clad only in their underwear is apparently fine as only the female nipple is afforded protection. And if all it takes is an exposed female nipple to trigger possible charges, anyone who captures images of wardrobe malfunctions, breastfeeding mothers, or topless protesters better have some waiver forms on hand.

But beyond that, there's the issue of sharing of any explicit depiction without the consent of all parties. Any non-consensual sharing of depictions of sexual activity and/or nudity is criminalized unless the person can show the sharing was a "matter of public concern." This would be the bill's journalism exception. There are also exceptions for law enforcement, legal proceedings, and "good faith" reporting of unlawful activity.

What makes this bill a bit better than many of its competitors is the burden placed on the government to prove intent.

[I]t shall be unlawful to knowingly use any means or facility of interstate or foreign commerce to distribute an intimate visual depiction of an individual—

(1) with knowledge of or reckless disregard for—

(A) the lack of consent of the individual to the distribution;

(B) the reasonable expectation of the individual that the depiction would remain private; and

(C) harm that the distribution could cause to the individual; and

(2) without an objectively reasonable belief that such distribution touches upon a matter of public concern

The bill also drags service providers into the mix, but fortunately doesn't expect them to police content or otherwise threaten their Section 230 protections. The only service providers that would be targeted would be those that "intentionally solicit and predominantly distribute content" that the provider "knows" is in violation of the law. So, there's intent needed to be proven there as well.

Still, the bill has some questionable components. First, the bill treats threats of publication as equally criminal as actual publication. In both cases, violators could be subject to an unspecified fine and up to five years in prison. It also includes an extraterritoriality clause that would allow the US to pursue overseas violators as long as the subject depicted was an American. We'll have to see if that still holds up once Congressional lawyers have taken a look at it.

Overall, the bill isn't terrible. It requires a showing of intent, something other revenge porn laws have disregarded. It does still present some First Amendment issues because the stipulations attached to violation (expectation depiction would remain private, distribution would cause harm to the subject depicted, etc.) are bound to swallow up some journalistic endeavors or documentation of sexual assault allegations (if the latter isn't shared exclusively with law enforcement). The edge cases will be left to prosecutors' discretion, which definitely isn't a good thing. All the evidence needed to argue for less prosecutorial discretion is the long string of embarrassments committed by prosecutors pursuing charges against sexting teens.

Given the aggressiveness of Harris' pursuit of Backpage for sex trafficking, it's somewhat of a surprise to a Harris-backed revenge porn bill take a mostly hands off approach to internet service providers. Still, there's a chance the bill could be made worse after a few markup rounds, turning it from an almost-acceptable piece of legislation into a speech-chilling, Section 230-damaging monstrosity.


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  • identicon
    Bruce C., 5 Dec 2017 @ 3:58pm

    Hmmm...

    Maybe Sen. Harris can learn from past mistakes after all...just a little bit more awareness of first amendment and liability issues and she could be the next Tom Wheeler. Now if she'd only go back and apply the standards in the new bill to SESTA, we could have a debate about whether the bill would actually reduce sex-trafficking.

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

  • identicon
    Anonymous Coward, 5 Dec 2017 @ 4:03pm

    (B) the naked genitals or post-pubescent female nipple of the individual are visible.

    So, apply a quick blur filter before posting to render the specific banned feature unrecognizable, leave the victim's face unobscured, and the result is legally fine, but almost as damaging as the non-blurred version.

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

    • identicon
      Anonymous Coward, 5 Dec 2017 @ 5:24pm

      Re:

      That's just the start of it. Ways to get around it could include: really skimpy underwear, pictures from the rear or side, showing bare butts... I'm sure lawyers could twist that even further. Some people's expectations of privacy are more modest than others. It's good that it's narrowly tailored, but it leaves open loopholes of abuse that unfortunately can't be readily closed.

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

    • identicon
      carlb, 5 Dec 2017 @ 5:36pm

      (B) the naked genitals or post-pubescent female nipple of the individual are visible.

      Ah, a loophole. Take the depicted naked genitals or post-pubescent female nipple of some other individual, paste them over top of the victim's genitals so that the original bits are no longer visible, and the whole thing's compliant? A naked picture of your victim... with someone else's bits.

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

    • identicon
      Anonymous Coward, 5 Dec 2017 @ 9:10pm

      Re:

      Not a defense, though:
      - that the whole thing is a cartoon
      - that the resemblance is only coincidental
      - that you did not, in fact, actually know the person making the accusation.

      Just because of some coincidentally similar tattoos, for instance.

      Also not a defense:
      - that the image is an oil painting. Say, done of a nude model in a class.

      And also not a defense:
      - that the image is a game sprite in GTA.

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

  • identicon
    toadie, 5 Dec 2017 @ 4:51pm

    Reversals of consent?

    I know the whole revenge porn and degradation of people is rampant and disgusting.
    But when I read some of these efforts to curb offenses I see holes where consent must be given. Does it need to be notarized? What if consent is verbal and revoked at a later time?
    Asking for a friend....

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

    • identicon
      carlb, 5 Dec 2017 @ 5:37pm

      Re: Reversals of consent?

      Look up "model release"... that's what existing mainstream pornography vendors use to cover their backsides.

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

      • identicon
        Wendy Cockcroft, 6 Dec 2017 @ 7:09am

        Re: Re: Reversals of consent?

        Mad idea: assume the worst at all times, meaning that you don't take naked pics or video of yourself or allow them to be taken since they'll probably end up on the internet at some point.

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

        • identicon
          Anonymous Coward, 6 Dec 2017 @ 10:41am

          Re: Re: Re: Reversals of consent?

          Yes of course. That goes without saying.
          But people do those things.
          And people later change their minds about things.
          And not everyone doing these things may be a professional pornographer.
          I read laws like this and see overflowing jails and ruined lives...

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

  • icon
    Bergman (profile), 5 Dec 2017 @ 5:21pm

    (B) the naked genitals or post-pubescent female nipple of the individual are visible.

    How would that interact with the trend lately of making constitutional challenges against laws that make it legal for men to go shirtless, while criminalizing women who do so?

    That particular constitutional lever has resulted in a number of places around the country where it is perfectly legal for a woman to go topless in public anywhere (previously) a man could do the same.

    So if you're in one of those places, wouldn't that tend to prohibit all photography, given the risk that someone in a large crowd in the background might have no shirt?

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

  • identicon
    3D Face Analysis, 5 Dec 2017 @ 5:22pm

    I don't think revenge porn is bad as society thinks.

    Five years is an extremely harsh punishment for exposing nipples.

    Prehistoric women exposed their breasts all the time. Some hunter-gatherer tribes living in Brazil have women with exposed breasts. None of the women were emotionally traumatized by their exposed breasts.

    The only reason why women are upset about non-consensual revenge porn is because it supposedly makes them look like sluts or because it cheapens their sexual value. When images of their breasts are available freely for anyone to see, her perceived sexual value decreases. When supply increases, the value decreases. This is why many women feel degraded if pictures of their private parts are available for free.

    The emotional trauma of "revenge porn" is purely social. Women don't want to be perceived as sluts or perceived as cheap. This is also the reason why courts routinely change "revenge porn" under defamation law rather than "harassment" or "intentional infliction of emotional distress".

    Revenge porn laws should not exist. There should be no special crime for revenge porn. Treating "revenge porn" or any other sex crimes as a special kind of crime is based on the notion that women's value is based purely on sex.

    Because the idea that women who are victims of sex crimes are special victims is the worst violation imaginable, is rooted in the exact same Victorian morality that slut-shaming is--the idea that a woman's sexual value is the most important thing she has, and that she becomes valueless once that purity is gone.

    Yet when it comes to sex crimes, women's other foot is still firmly planted in the fucking 1850s, where a woman's sexual integrity is the MOST IMPORTANT THING EVER, where revenge porn is the most shameful conceivable violation that can be perpetrated on a woman, and where victims must be treated with kid gloves even before they've been victimized.

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

    • identicon
      Wendy Cockcroft, 6 Dec 2017 @ 7:14am

      Re:

      You wouldn't, since you're not a woman and have never been on the receiving end of it. Lucky you. It's not women who are planted in a bygone era, it's the men they sleep with, work for, and associate with every day. Revenge porn's purpose is to intimidate and embarrass the woman, who worries that people she knows will think badly of her as a result of what they've seen online. Revenge pornsters like to send this stuff directly to employers, etc., in an effort to get their victims fired or to harm their careers. That this is a real risk is the problem.

      Revenge porn wouldn't be an issue if employers, etc., ignored such tactics but given what I've been reading about the Puritanical leanings of some corporate entities I'm not surprised the women are worried.

      It's not about sexual value per se, it's about how people you know treat you after seeing this stuff. NOW do you understand?

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

  • icon
    That Anonymous Coward (profile), 5 Dec 2017 @ 5:35pm

    The 1800's called, they'd like their moral panic over female nipples back.

    We live in an amazing time.
    Seeing a womans nipple can scar children for life.
    A womans exposed shoulders can destroy a males ability to think.
    Women should dress conservatively because men can not be trusted, a peek of a garter belt can make even a minister rape a woman.
    2 drunk people can decide to have sex, but only a man bears responsibility if she regrets it later.
    Women are to be treated as equals!!!! Except when its not right to think of those poor little ladies as responsible.
    Women need more legal protections over their nearly naked photos than men.

    Sharing pictures given while in a relationship is all the rage on all the platforms. For some reason people seem to think that their "true love" would never ever do that thing we've seen a few thousand times & upload them somewhere online to get payback. I call them stupid.

    Revenge porn is a childish way to get back at someone. People who solicit the images are the dregs of humanity, somehow there is a lower circle of hell where those who take money to remove the photos. While we like online entrepreneurs, this is craptastic.

    The law has been taking its sweet time noticing the world has changed & when the barn is fully engulfed they start to think perhaps maybe we should consider laws about fire safety for barns.

    Revenge porn is a bad thing.
    Playing the 'OMG we need to make up for all of those in the past who were harmed' is good for soundbites, not law.
    The amazing lopsidedness of the "rules" they suggest make it clear they don't think it happens to men.
    I guess we haven't learned the lessons of the past yet, there are 100 support things for women who are abused... men have next to no help & are looked down upon if they are the victim.
    A male teacher sleeps with a student, hes the devil.
    A female teacher sleeps with a student, and we think the kid was lucky.
    Both students are going to be screwed up for life, but there is still the she was a victim & he enjoyed it.

    There needs to be a punishment for those who do this seeking to inflict pain on an ex, but there shouldn't be the but its worse for girls mentality. Victims are victims, saying its worse if you have an innie instead of an outtie just reaffirms the double standards we claim we don't want for the genders.

    While everyone is focused on the criminality & punishment phase a modest proposal. A law similar to the DMCA where a victim doesn't need to get a court order to force the removal of the pictures. File a notice, affirm you are the subject of the intimate photo & want it removed. The host is required to remove it & preserve any data they have about the uploader. This would allow for evidence to be used in prosecution under how ever the law is finally made & create a quick system to remove the images. The internet never forgets, but some of the most horrible stories we hear from victims is the brickwalls they face trying to get the image down. It is a small easy victory to let them reclaim their power while waiting for the law to catch up.

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

    • identicon
      carlb, 5 Dec 2017 @ 6:42pm

      Re: DMCA

      DMCA is annoying in that it allows the most petty of alleged copyright violations to be taken down far more readily than other, more problematic sites - including consumer fraud, malware, you name it.

      That makes it a very easy law to abuse. It's pretty meaningless to use wording like "under penalty of perjury" if there's no means for the victim of a fraudulent or spurious notice to sue and have that penalty imposed for DMCA abuse.

      Oddly, DMCA doesn't protect the subject of a revenge porn image but it does protect the person taking the pictures - as it's normally photographer and not subject who holds the copyright. That has led to abuse of DMCA for things it was never meant to do, just because it's so easy to make content vanish - no questions asked.

      For instance, https://en.wikipedia.org/wiki/Severina_(singer)#Sex_tape_scandal says "In 2004 Vučković was involved in an internationally reported sex scandal after a sex tape featuring her and Bosnian Croat businessman Milan Lučić leaked onto the Internet, which was reported by the Croatian online tabloid Index.hr. The graphic nature of the video and the fact that Lučić was married when the tape was filmed shocked the public. Vučković sued the website that released the tape for damages, claiming that the video was stolen from her and that it was her intellectual property, but her lawsuit was later dismissed by a Zagreb district court in July 2004."

      As the subject of the photo, she has no right to abuse DMCA to make the photographs go away (as she's not the photographer or the agency employing the photographer) but a quick look through the "chilling effects" database will find plenty of Severina takedown notices. The majority are for plagiarised copies of her music (to which she would have a legit copyright claim) but mixed into that pile are quite a few DMCA takedowns intended to make screenshots of the sex tape go away - something the district court has pretty much all but said she has no right to do.

      Why? The laws on revenge porn are a patchwork which vary from one jurisdiction to another and awareness is low. Media companies, on the other hand, are routinely used to expecting DMCA to apply worldwide and content to magically disappear at their whim. When the only tool is a hammer, every problem is a nail.

      I received one of these notices, my first reaction was "Why is this Croatian trying to apply US law if I'm in Canada" and my next reaction was to ask if she'd even taken the photos (which determines ownership for copyright purposes). As far as I can tell, it is misuse of the system.

      Canada did bring in restrictions on revenge porn after the death of Rehtaeh Parsons, a Nova Scotia teen who took her own life after some of our precious, adorable young offenders (whom we cannot name, as under Canada's ridiculous youth criminal "justice" act it might harm their precious self-esteem) raped her and distributed video of the crime to her peers as revenge porn. And yes, children are our future.

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

      • icon
        That Anonymous Coward (profile), 5 Dec 2017 @ 8:31pm

        Re: Re: DMCA

        Note I said similar to. The DMCA is a huge screw up in my opinion, but the model as intended works. Its been made stupid by believing that copyright holders are magical and need everyone else to carry the burden for them & never hold them responsible.

        Being able to send a notice to have the image taken down without 100 hurdles would help victims.
        It also would kill the lucrative bottomfeeding business of fake lawyers or "reputation" services that will remove the images... for a fee.
        As we are talking about revenge porn, its hard to make the case how it could be misused.
        Its not removing entire sites, just images of revenge porn & maintaining a record of the uploader information. This makes prosecution much easier in most cases, because if you dumb enough to think uploading naked pics of your ex will bring her back you aren't a computer mastermind.

        Revenge Porn: Images of a person in various states of undress or nude, that the person depicted did not authorize to be disseminated to the public.

        Playboy model knows people will pass the photo around, a college freshman doesn't think about that when she sends an intimate selfie.

        Not going to require they have to submit a naked photo so they can verify its the same person in the image.

        An image of you doing kegstands & hitting a bong... nope thats on you. An image you sent to or taken by an ex-lover that they are putting out there to hurt you... thats revenge porn.

        Sorry you saw red when I mentioned the DMCA but my intention wasn't another abusable worthless system.

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

        • identicon
          Wendy Cockcroft, 6 Dec 2017 @ 7:18am

          Re: Re: Re: DMCA

          I'm with TAC on this, it's a good idea.

          I'd also like to add that when I was on the receiving end of a troll's attempt to discredit me (no porn involved), even though it was obviously trolling I still had to explain myself to my employers and the legal department still got involved.

          Again, it's not the women who are the problem, it's the people trying to cause problems for them and the ones who think badly of the women as a result. We're "special victims" because we're vulnerable to this stuff. Do it to a man and watch the whole damn office high-five the hot stud.

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

          • identicon
            carlb, 6 Dec 2017 @ 10:36am

            Re: Do it to a man and watch the whole damn office high-five the hot stud?

            Really? Do it to a man and post the results to www.gay-hamster.porn and the victim will still be the target of discrimination. Women are only one group of victims here.

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

            • identicon
              Wendy Cockcroft, 7 Dec 2017 @ 2:44am

              Re: Re: Do it to a man and watch the whole damn office high-five the hot stud?

              Agreed, and as you pointed out it depends on the context. Hetero men would be high-fived around the office. Gay men would certainly suffer.

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

  • identicon
    Anonymous Coward, 5 Dec 2017 @ 6:18pm

    "Still, the bill has some questionable components."

    The road to your total servitude has already started.
    this will be just another step if you take it.

    No law will be created today that does not wind up fucking the innocent more than the guilty in some way or another.

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

  • icon
    bennet (profile), 5 Dec 2017 @ 10:38pm

    Revenge Porn Bills Are Getting Better

    I am glad to see you credit the bill for improvements over prior bills. We have had RP laws for several years now, can anyone cite to a case that raised concerns that reporting would trigger liability? This issue was raised in RI to justify a veto of a bill that was more carefully drafted than most of the existing laws out there.

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

  • identicon
    Anonymous Coward, 6 Dec 2017 @ 1:17am

    "Overall, the bill isn't terrible."

    "Still, there's a chance the bill could be made worse after a few markup rounds, turning it from an almost-acceptable piece of legislation into a speech-chilling, Section 230-damaging monstrosity."

    There's NEVER been a bill passed by congress yet that hasn't been subsequently tweaked to mean something different and to include other items to outlaw after passage. And NEVER without the intent to do exactly that upon first passage. So yes, Tim, it most certainly IS a terrible bill. What's just as terrible is your quite palpable recent acceptance, if even in part, of this type of bullshit in general, and furthermore your slow-burn approach to encouraging the same from the TechDirt audience. TechDirt's incrementalism is just as obvious as that which congress repeatedly tries to pull on the public at large. NOT GONNA HAPPEN TIM. NOT GONNA HAPPEN.

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

  • identicon
    Anonymous Coward, 6 Dec 2017 @ 5:13am

    What about that nauseatingly explicit video of Texas Congressman (R-TX) Joe Barton masturbating?

    While some might argue that embarrassing (if not destroying) a conservative Republican politician satisfies the "matter of public concern" exemption , such video would otherwise seem to fit the very definition of "revenge porn."

    Anyone who thinks that such a law won't be abused might want to consider the many instances that people who protest government officials have been criminally charged under state "stalking" laws.

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

  • identicon
    Anonymous Coward, 6 Dec 2017 @ 6:11am

    Intent

    > It requires a showing of intent, something other revenge porn laws have disregarded.

    It doesn't require revenge to be the intent, and doesn't only affect porn, so it shouldn't be called a "revenge porn" bill. It also requires knowledge or reckless disregard of harm. What does that mean? Are people "harmed", in a legal sense, by these images? Maybe the privacy invasion could be called "harm", but then why wouldn't it be covered by A and B?

    "touches upon a matter of public concern" looks like a loophole. The existence of this bill suggests there's a matter of public concern, and wouldn't all images banned by it "touch upon" this matter by definition?

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


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