The Cyber Civil Rights Initiative welcomes the passage of the SHIELD Act as an amendment to the Violence Against Women Reauthorization Act of 2021, providing urgently needed protection against an egregious form of cyber sexual abuse that disproportionately affects women and girls. As the nation’s leading nonprofit organization focused on the issue of nonconsensual pornography, CCRI thanks Rep. Jackie Speier, Rep. John Katko, Rep. Hakeem Jeffries, Rep. Ted Lieu, Rep. Mary Gay Scanlon, Rep. Stacey Plaskett, and Rep. Veronica Escobar for their bipartisan leadership in support of the SHIELD Act and for submitting the SHIELD Act as an amendment.
The SHIELD Act, originally introduced in 2019, is a bipartisan measure that addresses the devastating and often irreparable impact of the unauthorized disclosure of private, sexually explicit visual imagery. This impact includes loss of employment and educational opportunities, harassment, stalking, threats of sexual assault, deterioration of intimate and family relationships, and psychological trauma severe enough to lead many to contemplate, and some to lose their lives to, suicide. Nonconsensual pornography has proliferated in the digital age due to the ubiquitous presence of virtually undetectable recording devices, the instantaneous communication possibilities afforded by the Internet and social media, and increasingly common cyber attacks that allow hackers and abusers to access private information. Like other forms of domestic violence and sexual abuse, rates of cyber sexual abuse have increased during the COVID-19 pandemic. In 2020, for example, the CCRI Crisis Helpline logged a 38.39% increase in calls.
Women are almost twice as likely to be targeted for nonconsensual pornography and make up the majority of victims exploited on so-called “revenge porn” websites. Photos and videos of their most private moments, often created or obtained without their knowledge, are also distributed through social media, messaging applications, and emails. Not only is nonconsensual pornography a common form of intimate partner violence, but it also plays a role in sexual assault, sex trafficking, and sexual harassment. Domestic abusers threaten their partners with exposure to prevent them from leaving or reporting the abuse; rapists record their attacks for personal gratification and to further torment their victims; harassers use nonconsensual pornography to create hostile environments for female employees and students. In addition to the grave injury the abuse inflicts on individual victims, nonconsensual pornography also chills women’s and girls’ freedom of expression and deters their participation in professional, political, and civic life.
In the past few years, the majority of states have acted to address the growing epidemic of nonconsensual pornography. But variations across jurisdictions in the definition, classification, and remedies for this crime leaves victims at the mercy of a confusing patchwork of laws. In particular, many state laws against nonconsensual pornography only apply in cases where the perpetrator is motivated by a personal desire to hurt the victim. That means that perpetrators who are motivated by profit, voyeurism, a desire for social status, or any other reason can commit this abuse with impunity.
The SHIELD Act amendment to the Violence Against Women Reauthorization Act of 2021 closes that absurd loophole and provides a clear path to justice for victims of this destructive, often borderless, crime. Protecting the privacy and free expression rights of women and girls is an essential part of combating violence against women and achieving gender equality.
About CCRI: CCRI’s mission is to combat online abuses that threaten civil rights and civil liberties. CCRI is the nation’s preeminent nonprofit organization working to protect vulnerable groups from threats such as nonconsensual pornography (NCP), sexual extortion, digitally manipulated audio-visual material (“deep fakes”), and other online abuses. CCRI provides model legislation, legal analysis, and amicus briefs on issues relating to privacy and free expression. CCRI has also provided support to over 7,000 victims of NCP through the CCRI Crisis Helpline.
As you may have heard, our longtime friends and partners at Without My Consent (WMC) will formally cease operations at the end of this year.
The WMC team comprises some of the nation’s sharpest legal minds and most determined visionaries. WMC began to tackle the problem of nonconsensual pornography nearly a decade ago. Since then, they have developed comprehensive resources to aid victims of online abuse, including the Something Can Be Done! Guide, a Grade Your State Checklist, and a Digital Abuse Cheat Sheet.
We are honored to have been chosen by WMC to steward these resources. We are committed to ensuring that these vital materials remain free and available to the general public, including law enforcement, lawmakers, and most importantly, to victims in need.
Though WMC is discontinuing its operations, we know that the friendship we began with its founders years ago will continue, and we trust that there will be opportunities for collaboration in the years to come.
We offer our heartfelt gratitude to Without My Consent for their groundbreaking and enduring contributions to this fight as well as for their friendship.
(This piece is cross-posted from The New York Times).
Are We All Celebrities Now?
By Amber Heard
Ms. Heard is an actress and activist.
Nov. 4, 2019, 6:00 a.m. ET
In 2014, hundreds of private, intimate photos of celebrities — most of them women — were posted on the online message board 4chan. From there, they spread to other online sites like Reddit, where the thread including links to the photos gained 75,000 subscribers in less than a day. The photos were stolen by hackers who broke into the Apple accounts of numerous celebrities. The “celebrity hack” exposed these women’s bodies against their will and turned their most private moments into public entertainment.
I know exactly how devastating this experience was because I was one of the women who was targeted. More than 50 of my personal photos were stolen and released to the public, sometimes in manipulated form and often accompanied by sexually explicit and degrading comments.
Complete strangers were consuming my most private moments without my permission. I faced a flood of unwanted propositions and harassing messages. The hack jeopardized my physical safety, my career, my sense of self-worth and every relationship I have had or will have.
And because nothing disappears from the internet, the torment will never end.
Imagine someone stripping you naked in the middle of a busy street, suddenly exposing you to the leering eyes of strangers. Now imagine that this moment never ends but repeats itself endlessly and that as it does, all you can hear is the crowd shouting, “You deserved it.”
There’s not a lot of sympathy for celebrities, even when their privacy is violated and even when the violation is so deeply personal and so destructive. There is a widespread belief that celebrities have traded privacy in exchange for fame — and that famous people have more than enough resources to protect themselves.
Why should anyone care when celebrities’ privacy is violated?
Celebrities do live their lives under closer scrutiny than others, and wealth and privilege do ease the burden of many hardships. But people who have jobs in the public eye do not belong to the public. Denying the right of anyone, famous or not, to exercise control over who is allowed to see their naked bodies or to witness their intimate activities is to deny their humanity.
And if the celebrity hack can teach us anything, it is that wealth and fame will not protect you from becoming a victim of this kind of abuse and can never make you whole again if you do.
We should care about celebrity privacy for another reason: Today everyone is one step away from becoming famous. The power of social media makes it possible for any person to be dragged before the eyes of the world. Nonconsensual pornography in particular forces a horrible kind of fame on its victims. And the average nonconsensual pornography victim has very few resources to manage the fallout of that involuntary fame.
I am a high-profile, white woman in the entertainment industry. I am fortunate enough to have fantastic legal counsel and access to receptive law enforcement agents. I am financially secure and enjoy a tremendous amount of good will from fans. Despite all of the resources and advantages I enjoy, however, I still fell victim to this abuse. To this day, my private photos remain online and my tormentors remain unpunished.
What happens when a person with far fewer advantages is victimized?
Holly Jacobs was working on her doctoral dissertation in Miami when she discovered that her private images had been released without her consent. The photos were sent to her family, her friends, her employer, her peers. She couldn’t go to the grocery store without thinking about whether people in line had seen them. The photos were at the top of results that came up in online searches for her name; everything else about her — her work, her accomplishments, her identity — disappeared beneath of a string of pornographic links.
Ms. Jacobs writes that she would work on her dissertation during the day and frantically send takedown requests to websites at night. After a month of this ritual, she thought she had finally succeeded in getting the material down, only to discover that within two weeks the pictures had been reposted to hundreds more websites. Like so many other victims of nonconsensual pornography, she writes that she experienced extreme anxiety, shame and depression. The violation of her privacy affected every aspect of her life, from her education to her career prospects to her intimate relationships. The abuse she endured forced her to change her legal name.
There are thousands of stories like Ms. Jacobs’s, many of them with tragic endings. Nonconsensual pornography disproportionately affects women, with devastating personal and professional consequences. Last month, Representative Katie Hill of California resigned from office after nude photos of her were released without her consent. Ms. Hill’s resignation highlights how nonconsensual pornography can force women out of positions of power and deter women from political participation.
These consequences of nonconsensual pornography intensify with the vulnerability of the target: Lower-income women, women of color and L.G.B.T.Q. people are at even greater risk. One study found that nearly half of the victims of nonconsensual pornography have been harassed or stalked online by people who have seen their private content. Further, 30 percent have been harassed or stalked in person or over the phone. Nearly all reported suffering significant emotional distress, and more than half experienced suicidal thoughts. Several women and girls have killed themselves in the wake of being victimized.
In an effort to fight back, Ms. Jacobs founded a nonprofit organization called the Cyber Civil Rights Initiative in 2013. I learned about it when Ms. Jacobs was named a finalist for the 2018 L’Oréal Women of Worth Award, for which I served as a presenter. For six years, C.C.R.I. has been spearheading crucial efforts for technological, social and legal changes to fight nonconsensual pornography, online abuse and the pervasive assault on privacy rights that is rampant in our digital world.
Legislative reform is a major part of that effort, in addition to providing crisis support and other resources for victims around the world and working with major tech companies to develop policies to ban and remove nonconsensual pornography. The organization’s president, the law professor Mary Anne Franks, drafted the first model statute criminalizing nonconsensual pornography in 2013. When C.C.R.I. began its work, only three states had laws against nonconsensual pornography; today there are 46.
Yet a vast majority of these state laws fall short. Misguided beliefs about “free speech” and the influence of powerful tech companies and business groups has resulted in inefficient, weak laws that fail to truly protect intimate privacy.
A case in point is New York, the most recent state to enact legislation criminalizing nonconsensual pornography. Gov. Andrew Cuomo signed the bill in July, but it had been in the works since 2013. In its early drafts, the bill clearly defined the crime as a violation of privacy. Every year supporters of the bill watched as civil liberties groups and corporate lobbyists worked to weaken its provisions. A key tactic of industry lobbyists, also used in other states, was to argue that the unauthorized disclosure of sexual images is not primarily a privacy issue. Instead, these groups insisted that the crime be characterized as “harassment.” By 2019, supporters of the bill felt forced to accept the compromise, unwilling to wait another year for the law to pass.
As Ms. Franks and Danielle Citron, another law professor, explained in a blog post for the Harvard Law Review, treating nonconsensual pornography as harassment instead of as a privacy violation has serious legal consequences.
Harassment laws punish perpetrators whose explicit motive was to cause harm or distress to victims. But a personal vendetta wasn’t what motivated the people behind the hacking of my photos and those of other female celebrities. It’s not what motivated the Marines who traded naked photos of their female colleagues in their closed Facebook groups, or the California Highway Patrol officers who circulated intimate photos of women they’d arrested as a “game” or the men who operate “revenge porn” sites for profit and notoriety.
This is precisely why “revenge porn,” the term often used to describe this abuse, is the wrong name: It is focused on intent rather than consent. What matters is not why the perpetrator disclosed the images; it is that the victim did not consent to the disclosure.
That is why laws against nonconsensual pornography should look like laws against other privacy violations, like the laws that prohibit the unauthorized disclosure of a broad range of private information, such as medical records and Social Security numbers.
Because the patchwork of state laws fails to truly protect intimate privacy, it is vital that Congress pass legislation that does. And that is why in May, I spoke at the news conference for the introduction of the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act, a bipartisan federal bill introduced by Representatives Jackie Speier of California and John Katko of New York.
Every person, from the most famous to the most obscure, from the privileged to the poor, deserves privacy.
I can tell you firsthand that acts of nonconsensual pornography are humiliating, degrading and life-altering. Nonconsensual pornography is one of the worst violations of privacy, and no amount of power or privilege can protect you from it. But those of us with power and privilege do have a particular responsibility to work toward ending it. We can all play a role, by speaking out about our experiences, supporting organizations like the Cyber Civil Rights Initiative and calling lawmakers. Ending the violence of nonconsensual pornography should not be tied to fleeting cycles of outrage or cases involving celebrities, but enshrined in the law to protect the right of intimate privacy for all of us.
(This piece is cross-posted from The Washington Post.)
Oct. 30, 2019
By Mary Anne Franks
Mary Anne Franks is a professor of Law at the University of Miami and the author of “The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech” (2019). She is also the President of the Cyber Civil Rights Initiative.
High-profile public officials often resign because they are afraid — they worry about damaging revelations, negative public opinion, an election defeat or other consequences of their actions. In the letter she posted to Twitter on Sunday announcing her resignation, Katie Hill made a somewhat unusual reference to fear: “I know that as long as I am in Congress, we’ll live fearful of what might come next and how much it will hurt.” The attacks that led to her resignation, however, are not about what Katie Hill fears, but about who fears Katie Hill: her estranged husband, GOP operatives, members of the public unsettled by her bisexuality and unconventional marriage.
When the right-wing outlet RedState published a story about Hill and her husband’s joint affair with a campaign employee, they illustrated it with nude photos of Hill and other intimate images of the relationship. These photos, allegedly supplied by Hill’s estranged husband, were reprinted by news organizations and gleefully circulated by partisan voyeurs.
Misconduct by an elected official may be a matter of public concern, overriding the privacy considerations that would normally apply to one’s personal life. But while the public may have a right to learn about an official’s alleged misconduct, it does not follow that the public has the right to see private, explicit photos of that misconduct. This is particularly true if other, less invasive evidence is available to support the allegation. In this case, there were copious text messages that provided clear evidence of a relationship between Hill and her campaign staffer. The publication of the intimate photos provided no additional relevant information not already conveyed by the text messages.
Private and public misogyny intersect in nonconsensual pornography, a form of sexualized abuse most frequently directed at women who have committed the unpardonable sin of displeasing men. Women are 1.7 times as likely to be targeted for nonconsensual pornography than men; LGB individuals are seven times as likely to be threatened with the abuse than heterosexuals. Nonconsensual pornography is frequently used as a tool by domestic abusers seeking to exert control over their partners or punish them for leaving. Women with power, or who occupy spaces traditionally reserved for men, are particular targets, as evidenced by incidents such as the celebrity hack, GamerGate and Marines United.
From the day Hill defeated a Republican incumbent during the 2018 midterms, to her branding of Brett M. Kavanaugh as a “serial sexual predator” during the Supreme Court confirmation hearings, to her role as vice chairwoman of the House Oversight and Reform Committee investigating the many wrongs of Donald Trump, Hill has provoked the ire of men accustomed to being obeyed. Katie Hill — young, female, bisexual, liberal, polyamorous, powerful — made abusive men fear that their dominance was coming to an end.
It’s also useful to put Hill’s relationship with the campaign staffer, which Hill herself has referred to as “inappropriate,” into context. It began before Hill took office, violating no law and no congressional rules. It was a consensual three-way relationship that included her husband. While Hill’s detractors also point to her estranged husband’s assertion that she had an affair with a congressional staffer, which would violate House rules, Hill denies that allegation.
By contrast, many men who currently occupy Congress, the Supreme Court and the Oval Office have been accused of much graver misconduct than a consensual relationship with a subordinate, including rape, domestic violence and sexual harassment. Women’s consensual sexual conduct continues to be judged much more harshly than men’s nonconsensual sexual conduct, and sexual objectification continues to be an effective way to put powerful women in their place. It is no wonder then that a vicious, politically motivated, cruel campaign of “revenge porn” targeted Hill. A federal bill to criminalize this practice was introduced in the House this year but has not yet received a committee vote. Previous versions of the bill were introduced in 2016 and 2017.
Even as she acknowledged the fear that victims of private and public abuse must face, Hill declared that she would not be defeated by it: “I, like many women who have faced attacks like this before, am stronger than those who want me to be afraid.”
The prurient nature of the Hill scandal that unfolded this week wasn’t about her relationship at all. It was about the gratuitous use of nude photos to humiliate and punish a woman with power.
For immediate release: CCRI Applauds Illinois Supreme Court Decision Upholding “Revenge Porn” Law Against First Amendment Challenge.
In December 2014, Illinois passed the strongest criminal law against nonconsensual pornography in the country. The measure was drafted in collaboration with Cyber Civil Rights Initiative President Mary Anne Franks, who testified on behalf of the bill before the Illinois legislature. In 2018, a circuit court declared the law unconstitutional on First Amendment grounds. The Cyber Civil Rights Initiative was granted leave to file an amicus brief in the case when it came before the Illinois Supreme Court. On Friday, Oct. 18, 2019, the Illinois Supreme Court upheld the law, adopting many of the arguments set forth in CCRI’s amicus and citing extensively to scholarship by President Franks and Vice-President Danielle Citron.
In People v. Austin (2019 IL 123910), the court found that “nonconsensual dissemination of private sexual images causes unique and significant harm to victims.” Evaluating Illinois’ law under intermediate scrutiny, the court found that it “is narrowly tailored to further the important governmental interest identified by the legislature,” namely, the protection of privacy. The law
“is similar to laws prohibiting the unauthorized disclosure of other forms of private information, such as medical records, biometric data, or Social Security numbers. The entire field of privacy law is based on the recognition that some types of information are more sensitive than others, the disclosure of which can and should be regulated. To invalidate [the law] would cast doubt on the constitutionality of these and other statutes that protect the privacy rights of Illinois residents.”
The court employed intermediate scrutiny because the law is a content-neutral time, place, and manner restriction and because it regulates a “purely private matter,” both arguments advanced by President Franks in her 2017 law review article, Revenge Porn Reform: A View From the Front Lines.
The court also found “that the unauthorized dissemination of a private sexual image, which by definition must depict a person while nude, seminude, or engaged in sexually explicit activity, is presumptively harmful,” and that “[c]riminalization is a vital deterrent” in addressing this harm. It criticized the defendant’s contention that the law “criminalizes an adult complainant’s own stupidity at the expense of the [f]irst [a]mendent,” finding that the claim “entirely disregards the victim’s first amendment right to engage in a personal and private communication that includes a private sexual image.” Such a “crude attempt to ‘blame the victim,’” said the court, “is not well received and reinforces the need for criminalization.”
One of the major strengths of Illinois’s law, which sets it apart from the majority of other state laws on the issue, is that it recognizes that the fundamental harm of nonconsensual pornography is the violation of privacy, not any particular motive for the violation. As the court observed, “the motive underlying an intentional and unauthorized dissemination of a private sexual image has no bearing on the resulting harm suffered by the victim. A victim whose image has been disseminated without consent suffers the same privacy violation and negative consequences of exposure, regardless of the disseminator’s objective.”
The decision in People v. Austin demonstrates that free speech and privacy are not mutually exclusive and reaffirms CCRI’s position that Illinois’s law should be a model for other states.