(This piece is cross-posted from Refinery29.)
All of us share private information with third parties at some point in our lives, from home addresses to medical records to credit card numbers. Many of us share private information several times a day. The behavior is so routine that we don’t think about the fact that sharing or even storing private information creates a risk that it will be misused. If we do think about it, most of us believe we can trust third parties to keep our private information confidential, and that if they do not, they – not us — will be punished. Yet there is one type of private information that is treated very differently: nude or sexually explicit photos and videos. The response to breaches of sexual privacy is all too often to blame the victim.
Consider this: while credit card fraud is outlawed everywhere in the U.S., the unauthorized use of nude or sexually explicit photos and videos is legal in more than a dozen states and only prohibited under narrow circumstances in many others. We do not scrutinize the purchasing habits of credit card fraud victims or suggest that such fraud is a natural consequence of trusting a third party with private information. Stolen credit card numbers don’t appear in search engine results for a victim’s name. There is no trendy name or dedicated fan base for credit card fraud, but there is an entire “revenge porn” industry dedicated to the promotion, solicitation, and consumption of private sexual information without authorization. Our social attitudes towards sexual habits are clearly far more conflicted and complicated than our social attitudes towards financial habits. In a society that is both fascinated by and fearful of sex, and which has historically prioritized male sexual prerogatives over female sexual autonomy, sexual abuses predominantly perpetrated by men against women are treated as natural, trivial, or deserved. This has been true of rape and sexual harassment, and is true now of nonconsensual pornography.
Dr. Franks giving testimony in favor stronger legislation in Illinois alongside the sponsor, Representative Scott Drury.
While Americans are eager consumers of sexually explicit material, we are also highly judgmental about sexual conduct. We are particularly and paradoxically moralistic about the sexual practices of women and girls: female “sexiness” is simultaneously celebrated and condemned. This leads to the paradox of men and boys pressuring women and girls into sexual activity – including sharing nude photos – and then shaming them for it. It is not a coincidence that the primary targets of revenge porn sites, large-scale photo hacks, and mass distributions of nude photos are female. The abuse can irreparably damage victims’ intimate relationships, educational and employment opportunities, mental health, and right to self-expression.
Thankfully, things are starting to change. In 2013, few people had ever even heard the term “revenge porn,” the tech industry had barely acknowledged the problem, and only three U.S. states had criminal laws against the abuse. That was the year that the Cyber Civil Rights Initiative began its work, beginning with its campaign against nonconsensual pornography. As CCRI’s Vice-President and Legislative & Tech Policy Director, I have had a front-row seat to many of the sweeping changes in the legal, technological, and social landscape on this issue in recent years. The courageous efforts of victims, along with the work of advocacy organizations, have had remarkable impact. As of March 2017, nearly every major tech industry leader, including Twitter, Facebook, Google, and Microsoft, has banned nonconsensual pornography and implemented measures to help victims report and request removal of private intimate material. Thirty-five states and Washington, D.C., have now passed laws criminalizing nonconsensual pornography.
This is tremendous progress in a fairly short amount of time. But much work remains to be done. As the recent Marines United photo scandal has shown, far too many people — including men who are supposed to represent the best of American society — still consider it acceptable to distribute and consume naked photos of women without their consent, and shift blame for their horrific conduct on to the women themselves. The tech industry has provided little to no information to the public about the enforcement or effectiveness of their policies, and most platforms have so far failed to move beyond reactive approaches to the problem to implementing the preemptive measures necessary to counteract this abuse.
On the legal front, many of the state laws passed in the last few years are ineffective, especially those that classify the abuse as a misdemeanor and are limited to perpetrators who intend to harass their victims. Prosecuting nonconsensual pornography cases frequently requires extensive investigation and resources, and prosecutors are often unable to commit either when the crime is classified as a mere misdemeanor. Though “intent to harass” requirements might seem reasonable, the Marines United case is only the most recent reminder that perpetrators are often not motivated by a personal desire to harass and that they may in fact go to great lengths to hide their actions from their victims. While some may feel that the First Amendment should protect Marines who ruin the reputations, careers, and lives of their fellow Marines by distributing private intimate material, as well as shielding revenge porn site owners hoping to make money and rapists seeking to share their recorded exploits, the First Amendment in reality demands no such result.
The single development that has the most potential to change social norms, provide legal clarity, and encourage effective tech industry response is the passage of a strong, carefully crafted, and constitutionally sound federal criminal law to protect sexual privacy. Congresswoman Jackie Speier (D-CA)’s Intimate Privacy Protection Act (IPPA), which has earned broad bipartisan support, is that law. If passed, it would make clear to the general public, law enforcement, and the courts that distributing private, intimate visual information without consent is inconsistent with our society’s commitment to privacy and equality. A federal criminal prohibition of nonconsensual pornography would apply across the country, provide a uniform definition of the crime, and make it possible to shut down the websites that traffic in this material. This would in turn send a powerful signal to the tech industry about how seriously it should take this issue as it develops new products and platforms. The Intimate Privacy Protection Act would serve as a strong deterrent to would-be perpetrators, provide the possibility of justice for victims, and protect the right of all of us to keep our most personal information private.
What you can do to help? Call your representatives in Congress and ask them to support IPPA.
Dr. Mary Anne Franks is a Professor of Law at the University of Miami School of Law. She is also the Legislative & Tech Policy Director and Vice-President of the Cyber Civil Rights Initiative (CCRI), a nonprofit organization dedicated to combatting online abuse.
(This piece is cross-posted from The Huffington Post.)
The recognition that the right to privacy extends to intimate photographs and videos is one step closer to becoming reality. On July 14, 2016, Congresswoman Jackie Speier (D-CA) introduced the Intimate Privacy Protection Act (IPPA). If passed, the bill would make it a crime to distribute private, sexually explicit photographs or videos of people without consent. In a press release about the bill, Congresswoman Speier said, “The damage caused by these attacks can crush careers, tear apart families, and, in the worst cases, has led to suicide. What makes these acts even more despicable is that many predators have gleefully acknowledged that the vast majority of their victims have no way to fight back. … My bill will fix that appalling legal failure.”
The Cyber Civil Rights Initiative is proud to have worked closely with Rep. Speier’s office in the drafting of this urgently needed legislation. Several CCRI members spoke at the press conference announcing the bill, including CCRI’s President and Founder Dr. Holly Jacobs, Vice-President and Legislative & Tech Policy Director Dr. Mary Anne Franks, Carrie Goldberg, and Anisha Vora. As of July 16,2016, this bipartisan bill has eight co-sponsors, including Reps. Katherine Clark (D-MA), Ryan Costello (R-PA), Gregory Meeks (D-NY), and Thomas Rooney (R-FL). The bill is the product of extensive collaboration with constitutional scholars, tech industry leaders, civil liberties groups, and victims’ advocacy organizations. In addition to CCRI, the bill is supported by Facebook, Twitter, the National Organization for Women, the National Democratic Institute, the Information Technology and Innovation Foundation, Feminist Majority, and Girls, Inc.
Much progress has been made in the United States with regard to nonconsensual pornography since CCRI began its work in 2013. We at CCRI have advised legislators in more than 30 states in their efforts to draft legislation to protect sexual privacy, and the number of states with laws addressing nonconsensual pornography has increased from 3 to 34 in that time. Unfortunately, a number of these state laws are flawed. Many fail to recognize nonconsensual pornography as a privacy violation, some fail to provide adequate constitutional safeguards, and none can be a complete response to this borderless phenomenon. A federal law is necessary to provide clarity, deterrence, and efficiency in addressing this crime.
The Intimate Privacy Protection Act does exactly what its title suggests: it recognizes that the right to privacy extends to sexual information. Numerous privacy laws protect the confidentiality of medical records, financial information, and many other forms of sensitive information. But existing laws offer much less protection for our most sensitive information: private photographs and videos of nudity or sexual activity. IPPA seeks to change that.
A handful of civil liberties groups, most notably the ACLU, have attempted to discredit and even defeat laws that would protect thousands of individuals from sexual exploitation. They have often attempted to do so in the name of the First Amendment. Their claims that IPPA, and state laws that resemble it, are overly broad or chill free speech have been unequivocally rejected by constitutional law experts. These include Professor Erwin Chemerinsky, Dean of UC Irvine School of Law, who, in addition to being one of the most influential legal scholars in the country, has argued several cases in front of the Supreme Court. According to Professor Chemerinsky, “There is no First Amendment problem with this 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.”Eugene Volokh, a First Amendment expert and professor at UCLA School of Law who is well known for his skepticism of “most privacy-based speech restrictions,”stated that the Intimate Privacy Protection Act is “quite narrow, and pretty clearly defined.” Neil Richards, a First Amendment and privacy scholar and professor at Washington University School of Law, called IPPA “a very well-drafted law.”
Likewise, claims that the Intimate Privacy Protection Act will stifle the tech industry have been contradicted by the fact that major leaders in the industry support the bill. These include both Facebook and Twitter. According to Amanda Faulkner, US Public Policy Manager of Twitter, the company is “glad to see Rep. Speier and so many of our safety partners taking the lead on this important issue, and we’re proud to stand with them in support of this legislation.”
The overwhelming support for the bill from experts and stakeholders has forced its few critics to resort to desperate tactics, in particular appealing to deliberately misleading terminology and farfetched hypotheticals. Representatives of the ACLU have insisted that the bill must explicitly include language about “malicious intent.” But such language isn’t found in other privacy laws, including many supported by the ACLU itself. That is because privacy laws recognize that the act of knowingly invading the privacy of another is itself malicious. When compelled to clarify, critics have admitted that their real demand is a motive requirement, and a remarkably arbitrary one at that. According to the ACLU, nonconsensual pornography should only be prohibited if the offender intends to harass the victim.
The absurdity of this position is evident when one considers the range of motives offenders have for violating victims’ privacy. For example, revenge porn site owners, rapists who send naked photos of their victims to their friends, and police officers who pass around intimate photos taken from the phones of women they’ve detained are not trying to harass their victims. The unauthorized disclosure of private information is no less harmful or less deserving of punishment when it is motivated by a desire for money, to gain reputational status, or to provide “entertainment.”
Insisting on an arbitrary motive requirement completely unsupported by First Amendment doctrine is so patently absurd that critics are forced to turn, finally, to the cheapest tactic of all: the parade of horribles. Unable to find a reasonable ground for their objections, these critics invoke an increasingly implausible series of farfetched scenarios in the hopes of frightening their audience into a negative reaction. Hence the hysterical claims that this bill will mean prison sentences for anyone who shares baby pictures, publishes photographs of war crimes, or forwards photographic proof of politicians’ sexual impropriety. These wild speculations ignore the fact that the bill is extremely narrowly drafted and includes many exceptions. It does not apply to anyone who had no way of knowing that the person depicted did not consent to the distribution or to any disclosures made for lawful purposes, including disclosures made in the public interest.
Those unfamiliar with legal drafting might be forgiven for thinking that a law is invalid if it could ever be applied in an unpopular or unreasonable way. But those who study and practice law know that laws cannot be expressed as mathematical equations. No matter how carefully drafted a law is, there will always be hard cases. The Supreme Court has made this point clear: “there are limitations in the English language with respect to being both specific and manageably brief.” CSC v. Letter Carriers (1973). No statute can “satisfy those intent on finding fault at any cost,” but the Constitution does not require the satisfaction of impossible standards. What is required, rather, is that laws be “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.” In another case, the Court made clear that though “laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect – at best a prediction – cannot, with confidence, justify invalidating a statute on its face… overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma (1973). The plainly legitimate sweep of this statute is to prohibit the knowing distribution of private, sexually explicit photos and videos with reckless disregard for the victim’s lack of consent and for no justifiable purpose.
The criticisms aimed at this bill are depressingly familiar. The pretense of First Amendment concerns, the trivialization of the harm inflicted, the limitless sympathy for perpetrators and the utter indifference to victims – these same tactics have long been used to criticize legislation against domestic violence, sexual assault, stalking, and sexual harassment. Perhaps the most disturbing claim made by critics of the bill is that sexual consent is ambiguous and that people should never be punished for recklessly disregarding it. That dangerous logic has helped create the sexual assault crisis we are experiencing today, and has greatly contributed to the phenomenon of nonconsensual pornography itself. Consent always matters, whether for the sexual activity is physical or virtual, and there is simply no excuse for disregarding it.
We are deeply grateful to Congresswoman Speier, the co-sponsors of this bill, and all of the legal experts, advocacy groups, tech companies, and victims who have helped to bring this bill into existence. As Prof. Chemerinsky has stated, “The Intimate Privacy Protection Act needs to be passed by Congress to deal with a serious problem that has arisen with the development of the internet and social media: posting, without consent, of nude photographs and videos of sexual activity.” We join Prof. Chemerinsky in hoping that Congress will act quickly to enact this bipartisan, constitutionally sound, and necessary legislation.
By Dr. Mary Anne Franks
Legislative & Tech Policy Director, Cyber Civil Rights Initiative
Professor of Law, University of Miami School of Law
Follow Mary Anne Franks on Twitter: www.twitter.com/ma_franks
May 11, 2016
We at the Cyber Civil Rights Initiative, who advocate on behalf of individuals who have suffered the devastating and irreversible harms caused by nonconsensual pornography, condemn your recent publicity stunt involving a false claim of a leaked sex tape, as well as the uninformed and self-serving statement you made in defense of your actions.
In that statement, you claimed, “We never make light of victims of any form of sexual abuse. Frankly, it’s disturbing to us that press outlets could make the incredibly irresponsible leap from ‘celebrity sex tape,’ which is the cultural trope this project explicitly references, to ‘revenge porn,’ which is unfunny, disgusting, morally repugnant, and completely unrelated. Even within the fictional narrative we created, there was no violence or exploitation. It was always about agency and proactive empowerment.”
Make no mistake: your actions did in fact make light of the experience of sexual abuse victims. You made a parody and a spectacle out of what is a real-life, inescapable nightmare for thousands of people for your own personal gain. You cynically exploited the sympathy and support of people who believed your story. You trivialized an issue that the general public has only just begun to understand and take seriously. You made it harder for future victims to be believed.
Your statement, which attempted to shift the blame for your reprehensible actions to the media, demonstrates a deeply flawed understanding of nonconsensual pornography. We hope that you will take this as an opportunity to educate yourselves about this conduct. “Revenge porn,” is the term popularly, though misleadingly, used to describe an entire genre of sexual privacy invasions. The more accurate term, nonconsensual pornography, does not refer only to conduct perpetrated by an embittered former intimate partner. It is any distribution of private, sexually explicit images or videos of people without their consent and for no lawful purpose. Perpetrators engage in this conduct for a variety of reasons: to torment a former partner, to engage in extortion, to make money, to provide “entertainment,” to broadcast a sexual assault, or for no real reason at all. Regardless of the motive, victims of this horrendous conduct suffer psychological, professional, reputational, and educational harm. They are frequently stalked, harassed, extorted, forced to remain in abusive relationships, fired from jobs, and expelled from schools. Some victims have committed suicide. Nonconsensual pornography happens to women, men, and children, and in contradiction to the false dichotomy you set up between “celebrity sex tapes” and “revenge porn” in your statement, it happens to famous people too. It is the violation of a right that belongs to everyone: the right to intimate privacy.
We invite you to truly reflect on the magnitude of the harm that your publicity stunt has caused to real victims of this conduct and to the understanding of this issue. We hope that you will make the time and effort to learn about this serious form of abuse and the advocacy efforts of organizations like ours to combat it.
Professor Mary Anne Franks
Vice President, Legislative & Tech Policy Director, Cyber Civil Rights Initiative, Inc.
Follow Mary Anne Franks on Twitter: www.twitter.com/ma_franks
March 28, 2016
Re: Opposition by Media Coalition and Motion Picture Association (MPAA) to Minnesota House File 2741 and Senate File 2713
The Cyber Civil Rights Initiative is a nonprofit organization dedicated to combating online abuse and harassment. It has advised dozens of state legislators as well as members of Congress regarding legislation protecting intimate privacy. CCRI’s Legislative and Tech Policy Director, Mary Anne Franks, is a professor of Law at the University of Miami School of Law specializing in constitutional and criminal law who has drafted influential model state and federal legislation regarding “revenge porn,” more accurately described as “nonconsensual pornography.”
CCRI supports Minnesota House File 2741 and Senate File 2713. The Media Coalition and MPAA’s opposition to these bills makes clear that the Coalition views the vicious and destructive invasion of intimate privacy as a form of free speech. In doing so, the two organizations demonstrate a callous disregard for the victims of this gratuitous and unjustifiable form of voyeurism. They also demonstrate a profound lack of understanding of both the nature and harm of non-consensual pornography and of basic constitutional doctrine.
The Media Coalition characterizes the harm of nonconsensual pornography as speech that is merely “offensive” or “embarrassing.” But nonconsensual pornography is first and foremost an invasion of privacy, and the Supreme Court has never held that there is a First Amendment right to publish private, naked or sexually explicit images of people without their consent. Rather, the Court has repeatedly affirmed the right to be protected against the disclosure of “purely private” matters.
The two groups are unable to offer a single example of protected speech that would be prohibited by the statute. This is unsurprising, given that the statute is narrowly drafted to prohibit only intentional disclosures of only sexually explicit images and videos without the depicted individuals’ consent and only when a reasonable person would have known the images were to remain private, in addition to including an exception for disclosures that “relate to a matter of public concern,” when “dissemination serves a lawful public purpose.”
Strangely, both the Media Coalition and the MPAA urge the addition of an “intent to harass” provision, claiming that such a requirement would dissolve their constitutional objections. But if there were any genuine First Amendment issues raised by the statute, they could not be answered by a requirement that literally singles out certain viewpoints for punishment. Such a provision would in fact create First Amendment objections on the grounds of under-inclusiveness and viewpoint discrimination, in addition to rendering the law incoherent and duplicative of existing law.
Adding an “intent to harass” requirement would mean that the people who distributed the private, intimate photos of celebrities, including Hollywood star Jennifer Lawrence, would be free to do so with impunity because they were merely providing “entertainment.” It would mean that revenge porn site operators would be free to destroy the lives, careers, reputations, and personal relationships of thousands of people, mostly women, because they are not motived by a desire to harass but by a desire to make money. It would mean that rapists who distribute the recordings they made of their sexual assaults on social media in order to brag about their exploits would be free to continue to do so.