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Revenge Porn, Free Speech And The Fight For The Soul Of The Internet

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Revenge porn victims won big last week: Three states passed legislation criminalizing the distribution of nude pictures without consent, and Google announced it would remove links containing unauthorized images and video from search results upon request per its new policy.

Comedian John Oliver even took up the issue on his show “Last Week Tonight” Sunday urging lawmakers and tech companies to do their part and curb all forms of online harassment, including revenge porn.

“This last week has been a monumental leap forward in terms of regulating revenge porn and protecting victims,” said Carrie Goldberg, a sexual privacy attorney in New York and board member for the Cyber Civil Rights Initiative, a policy advocacy group for victims of online harassment and abuse advocacy. “We have tremendous protections when it comes to certain types of speech, intellectual property, or financial information, but when it comes to matters of a private or personal nature, there aren’t as many.”

Texas, Oregon, and Vermont all passed laws making it illegal to share or propagate nude images initially shared to extort or harass. The Texas bill introduced earlier this year goes one step further and explicitly bans threats to disclose intimate pictures. That portion of the bill, Goldberg said, makes it “praiseworthy” because “it recognizes the cost of the threat, which could affect people in abusive relationships who stay longer than they would [normally] because of fear they will be exposed.”

Despite being hailed as a privacy victory for women who have been publicly humiliated and even lost their jobs to revenge porn, civil liberties advocates say such laws interfere with free speech and are potentially unconstitutional.

“A bill that criminalizes sharing an image of nudity, infringes on free speech,” said Lee Rowland, senior staff attorney specializing in speech and online privacy for the American Civil Liberties Union in New York.

The Texas bill doesn’t include any requirement for an expectation of privacy or harmful intent, she said. Under Texas law, a person could be criminally liable for posting a link or image of an anonymous nude body later identified by a third party in relation to the original post.

“If you share it, you’re guilty,” Rowland said. “If someone else comments on that link or image identifying that person, you would be guilty of a crime.”

Revenge porn has increasingly become a legislative concern with in nearly half of states having specific criminal laws on the books. Twenty-three states now have revenge porn laws in some form, up from three states since 2013. Absent criminal laws, victims must rely on harassment or stalking laws that may or may not apply to each case, file copyright claims to get images removed from websites, file extortion charges or a civil suit against the perpetrator.

“Criminal [revenge porn] laws are important because they reflect our social norms, if as a society we’re saying this conduct is not tolerated, it’s justifiable that as a civilization we crack down on that,” Goldberg said. Laws like the one Texas passed put “the burden of the state to stop this loathsome behavior,” making it easier for victims to go to the police and for the police to act on the reports.

Without careful language targeting the person responsible for posting the pictures without consent, free speech activists worry that ease in reporting could mean criminal charges for unsuspecting users who re-distribute unauthorized photos or video originally posted by a spurned lover, but didn’t intend to harm or harass the victim.

“If you just re-blog a picture of someone you think is attractive, not having any context that any of the [legal] elements apply, the expectation of privacy is in how the person received the picture,” and whether they intended to harass or extort the person depicted, said David Horowitz, executive director of the Media Coalition in New York. “We often speak without consent, when your friend tells you a secret and you tell someone else. Your friend is mad at you but you didn’t do anything illegal.”

To be constitutional, revenge porn laws should focus on the bad actors and their intentions to violate someone’s privacy. That way, Horowitz said, “you can focus on the horror stories that cause people to lose their job.”

Victims and their advocates may disagree, and opt for having the ability to file criminal charges as means to rectify these privacy invasions. Narrowing the scope of the law to include an individual’s intent would make cases harder to prosecute and leave out other instances of revenge porn, Goldberg said.

“There’s been such a lag in regulating online content, but particularly revenge porn,” said Goldberg, who believes there’s no legal or constitutional basis to require intent-to-harm language in revenge porn laws. “There are so many situations that would be excluded: celebrities whose pictures were hacked and shared [referring to last year’s iCloud hack], police arresting people and confiscating photos and sharing them,” Goldberg said. “Was there an intent to harass these women? No it was ‘fun.'”

The internet and how it’s used as an almost too effective communication tool, has raised a new set of First Amendment concerns. Chief among them are threatening behaviors, that if exhibited offline would more often lead to police or legal action, but are considered benign when committed online.

The U.S. Supreme Court ruled earlier in June in favor of a man who wrote threatening Facebook posts targeting his estranged wife. The court decided not to determine whether the posts were protected under the First Amendment but instead determined the posts, stylized as graphic rap lyrics, were not credible threats that posed imminent harm to his wife.

When it comes to content regulation, however, the courts almost always side with the First Amendment, Horowitz said: “It’s another example of compromises made between privacy and free speech.”

In the private sector, social media and tech companies have been criticized for not doing enough to quell the harassing and violent behavior on their websites. Twitter, Periscope, Reddit, and Facebook have all altered their privacy policies banning abusive or threatening behavior, including revenge porn.

“Those policy changes will play a more significant role in whether [unauthorized intimate] pictures get removed, and may be more effective than criminalizing it,” Horowitz said.