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Why It’s So Hard To Make A Law against Revenge Porn [Collision Course #3]

Hello and welcome to the third issue of Collision Course, a newsletter about tech policy, consumer pr
Why It’s So Hard To Make A Law against Revenge Porn [Collision Course #3]
By Tommy Collison • Issue #3 • View online
Hello and welcome to the third issue of Collision Course, a newsletter about tech policy, consumer privacy, and the future. This issue is about revenge porn, why it’s hard to legislate against it, and how we might do so in the future.

A man, a plan, a sext, a lawsuit, Panama!
With basically all of us carrying around internet-enabled cameras (excuse me, smartphones), I’m surprised we don’t hear more about revenge porn, or sharing someone’s intimate photos and videos without their consent.
Often, these photos are consensually taken and shared in the course of a relationship, and then shared more widely, either by accident or by a jilted ex-partner looking to embarrass and damage  their ex’s personal and professional life.
Sharing such pictures can also be dangerous: many of the photos hosted on IsAnyoneUp.com, a now-defunct site that hosted a huge number of revenge porn photos, also included information about the person’s name, location, and social media. Revenge porn often overlaps with harassment and stalking.
The most recent case I’ve been following is Kathryn Novak, an Arizona student who shared intimate photos with her boyfriend in the context of a long-distance relationship. The boyfriend, who was a member of a fraternity at the University of Central Florida, shared those photos with other students at the university, and added them to a secret Facebook group maintained by fraternity members called Dog Pound, “where fraternity brothers routinely posted electronic video and images of their sexual ‘conquests.’”
Novak is suing her ex-boyfriend, the fraternity, and four fraternity members, seeking $75,000 in damages and a permanent injunction against the videos and images being shared further.
That doesn’t change the fact that the images are out there. Revenge porn and intimate photos are a notoriously tricky area of law, and many state laws banning it have been struck down for one reason or another.
So – why is it so hard to make a law against revenge porn?
1. It’s virtually impossible to take the images and videos down.
It’s the internet. Everyone links to, shares, and copies content. People save things to their hard drives. 
Sarah Jeong, a journalist at the intersection of law and technology, says it best:
“Any anti-harassment strategy that focuses on deletion and removal is doomed to spin in circles, damned to the Sisyphean task of stamping out infinitely replicable information.”
— Sarah Jeong, The Internet of Garbage.
2. Laws are hard.
It’s very difficult to make a law criminalizing revenge porn that only criminalizes what we think ought to be criminalized.
California’s 2013 anti-revenge porn bill only criminalized images taken of someone else. How many intimate photos are selfies? Over 80 percent, says the Cyber Civil Rights Initiative.
Arizona passed a law in 2014 that criminalized the sharing of nude photos of another person — a law with implications far, far beyond revenge porn. The same law would have criminalized the Pulitzer-winning “Napalm Girl” photograph from the Vietnam War, photos of the abuse at Abu Ghraib, or images of mothers breastfeeding.
Another reason these sorts of laws are thorny: sometimes the relationship is legal, but taking photos isn’t. A man in Cleveland could face 15-30 years in prison on child pornography charges: when he was 20, he took intimate photos of the 17-year-old he was dating at the time. The relationship was legal (Ohio’s age of consent law is 16), but federal law states that it’s illegal to take or possess explicit images of someone under 18. Laws are hard, yo.
3. Sexts are sometimes in the public interest
In 2016, Anthony Wiener (who resigned from Congress in 2011 after accidently tweeting a lewd picture of himself), made the news again when a different sext of his appeared in the New York Post, with his toddler son in the bed beside him.
Whether we like it or not, intimate photos are sometimes in the public interest. Considering that Anthony Wiener once harbored ambitions of being mayor of New York (and the fact that Wiener is currently serving a prison sentence for a third sexting scandal — this time sending obscene material to a minor), information about his sexting habits is of relevance to the public.
Any revenge porn law, then, needs to be immune to the Anthony Wieners of the world trying to get such photos taken down because they’re politically undesirable. Plus, any law shouldn’t criminalize the New York Post for publishing the photos.
(Thought experiment: is Anthony Wiener the victim of revenge porn? Dan Savage, who writes probably the most famous sex and relationship advice column, says yes.)
Bonus round: what might an eventual revenge porn law look like?
Before going into hypotheticals: victims today can make a variety of civil claims for restitution — Kathryn Novak, who I mentioned at the top of this piece, is suing her ex (and the frat) for invasion of privacy, intrusion, intentional infliction of emotional distress, and negligence. It’s not perfect, but it’s not as if there no avenues exist.
Contrary to what I used to think (and much of what’s written), I don’t think revenge porn is a First Amendment issue — at least not in practice. Taking and sharing photos is protected free speech, and I don’t think it’s the hill anti-revenge porn activists should die on.
What I think has merit: I can imagine attacking revenge porn on another flank: linking it to online harassment and cyber-stalking more generally, or fighting it using privacy and breach of confidentiality laws. Remember that, despite all the controversy, Hulk Hogan won his sex tape case against Gawker on invasion of privacy laws.
And so, as it with most things, it comes down to how well we can draft a law. I’m confident that eventually, we’ll get it right. 
As always, I welcome your feedback, and I’d love to hear your suggestions for what you’d like to see covered in this newsletter. I’m @tommycollison on Twitter, or you can email tommy@collison.ie. Please get in touch! 📩📬
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