In 16 states, if a nude photo of you winds up online without your permission, it is highly likely that there is nothing you can do about it. Even in states where sharing such images online is illegal, in some cases it is only illegal in a few specific circumstances. In 2016, privacy for our most vulnerable, intimate images is still not a right.
The Intimate Privacy Protection Act, introduced on Thursday by Congresswoman Jackie Speier (D-Calif), aims to change that. The bill would make so-called revenge porn illegal at a federal level; those who share non-consensual nude images would face fines and up to five years in prison whether the images were shared by a jilted ex-lover out of spite, or by those seeking to profit from the privacy violation.
This law would go a long way toward stamping out revenge porn once and for all.
In the past three years, huge strides have been made toward ending revenge porn. More than half the states have passed laws criminalizing revenge porn. Reddit, Facebook, Google and Twitter have all recently banned nonconsensual nudes, as well. But the laws that exist are a confusing patchwork of legislation in which many states still offer scant protections for many of the situations in which non-consensual nudes end up online. Arizona's recently passed law, for example, only criminalizes non-consensual nude images if they were actually shared with the intent of revenge. In Arizona, if those images are propagated, say, by one of the thousands of websites profiting off the distribution of women's nudes against their will or nursing home staffers Snapchating compromising images of patients just for kicks, victims are left with no legal recourse.
The proposed law would not only provide legal avenues to justice in states without any laws on the books at all, but would make protections much broader by making it illegal to distribute nude images "with reckless disregard for the person’s lack of consent."
"Across the country, 34 states have adopted their own bans on non-consensual pornography. Some of these laws are carefully crafted, but many have important elements lacking," Speiers said, introducing the bill via Facebook Live. Some laws, she said, "only punish non-consensual pornography when the perpetrator is motivated by a desire to harass the victim, which leads perpetrators motivated by greed or voyeurism free to commit as many abuses as they want."
Critics of the law argue that it is overly broad, potentially leading to infringements of First Amendment rights or the prosecution of situations that the law was not intended to prevent.
"When you're talking about restricting communications, you need to be very narrow when you talk about restricting that right," said Michael Macleod-Ball, who leads the American Civil Liberties Union federal First Amendment advocacy work. "There has to be some intent of malice."
Macleod-Ball said that there have been "numerous examples of overzealous prosecutors obsessed with sex" wrongfully pursing prosecution under similar laws, pointing to the Pennsylvania prosecutor who in 2010 charged 10 teens with possessing child pornography for sexting.
The ACLU has been instrumental in either holding up or watering down many revenge porn laws, including Congresswoman Speier's bill, which was initially slated to be introduced last September. The ACLU, for example, was the driving force behind redrafting Arizona's revenge porn bill to require an intent to harm as criteria for prosecution. In Arizona, ACLU lawyers argued that the law could get newspapers or academics in hot water for showing images with political and historical significance, such the iconic 1972 "Napalm Girl" photo.
"We all agree that there is a problem," Macleod-Ball said. "We want a law that doesn't expose people who we all agree are innocent. If a woman receives a nude selfie from a man and then just sends it to her friends, she could be subject to prosecution."
But the latest draft of Speier's bill, retooled to get supporters like Facebook and Twitter to sign on, includes many exceptions to prevent against the situations the ACLU and other critics fear. Internet service providers such as Facebook and Twitter are exempt from prosecution under the law, unless like revenge porn website operators, they specifically promote non-consensual nude images. Law enforcement or individuals reporting a crime are exempt, as are situations in which disclosure is in the public interest, such as in the "Napalm Girl" photo. (And in the case of the woman sharing a nude selfie she received with friends, if it was unsolicited it could be considered "voluntarily public" and thus also exempt.)
It is entirely possible that with a law this toothy, some individuals may get caught in the crossfire of prosecutors who obscure its intent. But what is absolutely, undeniably true is that by limiting the prosecution of those distributing non-consensual nudes to those seeking revenge, many, many victims will still be left without a legal path to justice. Hunter Moore, the revenge porn kingpin who operated the site IsAnyoneUp.com, was only prosecuted and sentenced under laws against identity theft and hacking. If he hadn't committed those other crimes, under the version of the law the ACLU would like to see, prosecutors would likely have no crime to charge him with. Violations of privacy do not have to be malicious to be intentional. Crafting a narrow law creates a narrow slice of victims to which its protections are available.
"Sometimes it's not revenge at all," the Congresswoman said. "Sometimes it's just sexual entertainment. Sometimes it's about making money."
The Intimate Privacy Protection Act has bipartisan support in the House, as well as the support of Facebook and Twitter.
“Using intimate content to intentionally shame, embarrass or control someone is abhorrent," a Facebook spokesperson said in explanation of their support of the bill.
Constitutional law scholars, such as the Dean of UC Irvine School of Law, Erwin Chemerinsky, have also spoken out in support of the bill.
“The First Amendment does not protect a right to invade a person’s privacy by publicizing, without consent, nude photographs or videos of sexual activity," he said in a statement read by Congresswoman Speier at the bill's introduction.
But the bill is still likely to face an uphill battle. Speier's office has struggled to find a sponsor for the bill in the Senate, due in large part to aggressive lobbying from the ACLU. The ACLU, Speier's office told me recently, has become increasingly effective at mobilizing against revenge porn legislation behind the scenes. In the past, critics of such legislation have been unwilling to bend. They show no indication of an about-face now.
In the meantime, for many victims, when their most private, intimate moments appear on the internet in the form of unauthorized nudes, in 2016 there is still nothing they can do.