(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.
“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.
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
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