Protecting Intimate Privacy: The Fight Against “Revenge Porn”

(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.