Re: Opposition by Media Coalition and Motion Picture Association (MPAA) to Minnesota HF2741 and SF2713

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.

These points, as well as other points raised by the two groups, are addressed in detail in the accompanying marked-up response to the Coalition’s memo here and to the MPAA’s memo here.

The IRL impact of Google’s new “revenge porn” policy

“Everything is going to be okay.” I said that to three people today. It choked me up each time.

Up until this past Friday there were lots of other words of comfort I’d use: “We’ll get you to the other side of this.” “I’m here to help.” “One day at a time.” “Breathe through this.”

However, before Friday, to falsely assure my clients, victims of online sexual privacy invasions, of future okay-ness, was not something I could in good conscience do. I’m a litigator who handles cases relating to nonconsensual pornography (NCP), Internet privacy, and sexual consent. A lot of my work with clients early-on, though, is crisis management and about keeping the sharp objects far away. I’m also a board member at the Cyber Civil Rights Initiative through which we fought hard for Friday’s results.

When Google announced on Friday that it would respond to requests submitted from victims of NCP and remove nude and sexual images from their search engine results, I shrieked and cried. If it had been a sitcom, I would have grabbed the attorney down the hall by the necktie and kissed him deeply. Instead, I texted-tweeted-emailed-DMed manically with my litigation besty Elisa and my CCRI partners Mary Anne and Holly, giddy-groggy from a sleepless night anticipating this big announcement.

So many successes this past year were worthy of cork-popping: revenge porn bans from other tech behemoths (i.e. Twitter, Facebook, Reddit, Instagram, Periscope), the number of states that have passed criminal “revenge porn” bills growing to 23 , prosecutions of some of the most pernicious site operators, and even the FTC built a case describing the peddling of NCP an unfair or deceptive business practices. New federal legislation is in gestation. Mainstream media jumped aboard with articles and specials.

None of that mighty progress toward ending NCP, though, enabled me to tell my clients things would be okay.

Until now.

That’s because victims of NCP suffer an irreparable and long-lasting search engine crisis. Even when we remove the material from the Internet, sue the offender, obtain orders of protection, arrest, etc., the search engine crisis outlasts everything. It makes victims feel undateable, unemployable, and the object of spectacle. Search engines were both the vehicle and the highway by which revenge porn consumers — known and unknown to my clients — digitally arrive at their naked bodies. The more traffic to reach the destination, the more direct the route becomes with those pages rising above the victim’s intentional web information, profiles, and websites.

Even if we manage to clean up the search engine results, we still can’t relax because it may only be temporary. Not only is anybody capable of downloading, screen-shotting, and re-posting images they find online, but the bottom feeders of the human race see it as their life mission to monitor “revenge porn” websites and re-post images that have been removed. It was always a “it’s only a matter of time” situation, knowing that at any day – perhaps when they’re applying for a job or auditioning for a role or about to get married – the material could resurface when their name is typed into a search engine, thus sending us back into the lengthy quagmire of search engine rehab. This is particularly distressing with my youngest clients, some still in junior high school who could forever be tormented by an algorithm favoring the worst thing that ever happened to them.

Today, though, I got to say everything will be okay to a 24-year-old woman, a former sex worker, who turned her life around and is set to start social work school in the fall. Her ex-pimp, angry that she left the trade, created false advertisements for gangbangs publishing her name, address and phone number with it along with naked images on a dedicated website.

Today I said everything will be okay to a 40-year-old woman whose ex posted images of her on AnonIB. When she begged AnonIB to remove the images, they said only if she supplied a snapshot with her pictures and a sign advertising their site, which of course they intended to post.

Today I said everything will be okay to a young mother of two who left a physically torturous relationship only to find pictures of her vagina on fourteen different websites and fake Facebook accounts complete with her full name and contact information and information about her gynecological health. On one website, her image has already been viewed 32,000 times after only a few days.

In all those cases, the devastating discovery that their most intimate moments were publicly accessible was made when they typed their names into search engines.

Even better than telling my clients that things would be okay, was explaining why indeed they would be. The relief that washed over these faces as I described Google’s new policy delivered them from a place of agony to one of relief. Nobody who enters my office knows anything about the Internet – how easy or hard it is to remove images. They just know that it’s an overwhelming “blobby The Thing-type of thing” that they can’t see or understand or get inside of. Or control, that is, until Friday happened.

May Google make an honest woman of me and make everything really be okay.

By Carrie Goldberg

CCRI Board Member and attorney at C. A. Goldberg, PLLC
Note: Identifying information about the victims has been altered to protect their privacy.

Google cracks down on revenge porn

A letter to our supporters:

The Cyber Civil Rights Initiative is thrilled to have played a leading role in this week’s breaking developments on the issue of nonconsensual pornography. You know an issue is at the cutting edge of change when John Oliver features it. It was a delight for several of us to work with producers on Last Week Tonight’s feature about nonconsensual porn.

When we started the Cyber Civil Rights Initiative’s campaign to end “revenge porn,” we faced a seemingly impossible task. People told us we’d never get legislators on board; as of today, nearly half of all states have passed laws criminalizing this conduct and we are working with Congress on a federal bill. People told us “revenge porn” website operators were safe from prosecution, but yet we’ve seen one after another arrested and their sites darkened. People told us we’d never be able to convince tech companies to take action, and now one powerful company after another has announced policies banning nonconsensual pornography.

We are overjoyed to say that, after months of collaboration and dialogue, we can now add Google to that list. Google has announced a drastic change to its search policy: In the coming weeks, Google will honor requests to remove sexually explicit images that were published without consent.

“Our philosophy has always been that Search should reflect the whole web,” Amit Signhal, Senior Vice President of Google Search said in a blogpost today. “But revenge porn images are intensely personal and emotionally damaging, and serve only to degrade the victims—predominantly women. So going forward, we’ll honor requests from people to remove nude or sexually explicit images shared without their consent from Google Search results. This is a narrow and limited policy, similar to how we treat removal requests for other highly sensitive personal information, such as bank account numbers and signatures, that may surface in our search results.”

We are proud to see that our work to help current victims and to prevent future victims has had such an impact. The momentum is extraordinary, and we hope it will continue. We couldn’t have accomplished what we have so far or continued to fight against online abuse without your encouragement and support. Please consider donating to our cause to help us keep up the good fight.

So sincerely yours,

Holly, Mary Anne, Charlotte, Christina, Carrie, Annmarie, Anisha, Christa, & Natalie

Board of Directors & Volunteers, Cyber Civil Rights Initiative

Infographic: The Anatomy of an Effective Revenge Porn Law

The Anatomy of an Effective Revenge Porn Law

Anatomy of an RP law

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Seven Reasons Illinois is Leading the Fight Against Revenge Porn

Prof. Mary Anne Franks (left) and Rep. Scott Drury (right) present the IL “revenge porn” bill to the Judiciary committee in Springfield, IL.

Just in time for 2015, Governor Pat Quinn (D) announced a New Year’s resolution for the state of Illinois: end revenge porn. On Monday Quinn signed a new law making it a felony to post sexual videos or photos of another person without his or her permission. It goes into effect June 1, 2015. The law, modeled after legislation crafted by Professor Mary Anne Franks, Cyber Civil Rights Initiative (CCRI)’s Legislative and Tech Policy Director, criminalizes the practice of non-consensual pornography. Illinois residents have Representative Scott Drury (D) to thank both for sponsoring this law and tirelessly defending its integrity during an unusually lengthy and tumultuous legislative process. Of the sixteen states that have passed some form of revenge porn legislation, Illinois’s law is the best. Here’s why:

  1.  Motive doesn’t matter. Illogically, some states’ laws require that the offender have the intent to cause emotional distress to the victim. While the intent to cause distress may drive the offender’s behavior in the classic revenge porn case – punishing an ex after a breakup –perpetrators can be driven by a number of other motivations. Some people engage in non-consensual pornography out of a desire for financial gain, for the “lulz,” for entertainment, for sexual gratification, or for no particular reason at all. Intent to harm requirements leave many serious violations of sexual privacy beyond the reach of the law – consider the celebrity “nude photo” hack and vicious GamerGate attacks against female game developers. Illinois’s law wisely prioritizes the harm to the victim over the motive of the offender. After all, the harm is devastating no matter the offender’s motivation.
  2. Selfies are included. The Illinois law applies to images that victims take of themselves.California’s original 2013 “revenge porn” law, for example, only applied to images taken by somebody other than the victim. Fortunately, California amended its law in 2014 following input from CCRI. The vast majority of intimate images (83%) originate as selfies.
  3. Strong punishments. Illinois leads the pack in taking this crime seriously. It does so in two ways: First, the law makes non-consensual pornography a Class 4 felony, punishable by one to three years in prison, while also hitting perpetrators in the wallet with fines up to $25,000 and restitution to victims for any costs incurred. Secondly, it includes an additional provision requiring forfeiture of any profits derived from the distribution of the material.
  4. Not just nudity. Some laws only apply when a victim’s “sexual parts” are exposed. The Illinois law, by contrast, recognizes that not all intimate sexual acts involve nudity. For instance, the Illinois law would apply when a victim is depicted performing oral sex or has been ejaculated upon, regardless of whether the victim is nude.
  5. Downstream distributors. Several revenge porn laws punish only the original non-consensual distribution, doing nothing to deter secondary recipients from forwarding and redistributing the images. Illinois solves that problem by employing a “reasonable person” standard. The law considers whether a reasonable person would know or understand that the image was to remain private and that the person depicted has not consented to the dissemination. This provision will help prevent material from going viral when it is clear that the distribution is non-consensual. In other words, this law requires that people think before they click.
  6. It honors the First Amendment. The Illinois law is narrowly tailored, so as not to sweep up expressive conduct vital to a free society. The statute doesn’t apply to images that are distributed for a “lawful public purpose.” Other exceptions include images that are distributed in connection with the reporting of unlawful conduct, lawful criminal investigations, and images depicting voluntary exposure in public or commercial settings. That means no journalist ever has to fear being prosecuted under this law for publishing photographs of a topless protest and no porn enthusiast needs to worry about going to jail for forwarding links to his favorite commercial hardcore sites.
  7. Doxxing. The Illinois law recognizes that personal identifying information of over half (59%) of victims is posted alongside nude images, including the victim’s full name, email address, social network screenshots, home address, workplace, school etc. The harm caused by the publication of this identifying information cannot be overstated. This disclosure of private information jeopardizes victims’ employment, employability, relationships, reputation, and safety. Revenge porn consumers often interpret victims’ contact information as an invitation to stalk and threaten them, and the material often dominates victims’ online presence. The Illinois law applies when a victim is identifiable from his or her face as well as when as other identifying information is displayed in connection with the image.


By Carrie Goldberg, Esq., a lawyer in Brooklyn at C. A. Goldberg, PLLC and board member at Cyber Civil Rights Initiative.