Over the weekend, under the hashtag #twitterpurge, users took to Twitter to “expose” the nude photos they had of other people, with or without consent. The so-called purge primarily targeted girls and women. In other words, it was revenge porn.
As an attorney who helps clients remove revenge porn from the Internet, I recently got a call from a mother whose daughter had been contacted by a reporter for an interview. The 22-year-old learned from the reporter that four nude selfies of her had been featured on a site specifically for this kind of thing for nearly eight months and accumulated over 30,000 views. They had been posted with her full name, the name of the town where she lived, and with links to her Facebook and Twitter accounts. Above all of this information was a screed calling her a “cunt” and a “whore” and a “sick, suicidal bitch.”
That’s typical revenge porn; it’s bullying. “Porn” is a misnomer since it draws the focal point to the wrong spot, at least from the victim’s point of view. Victims have lost jobs, dropped out of school, moved, changed their names, attempted suicide, and more, after having their photos posted without consent. The nonconsensual exposition of privately taken or acquired images of a person, particularly nude images, coupled with assaultive language amounts to deeply damaging abuse.
It took me two days and about six hours to get the photos down. First, I had to register the images with the U.S. Copyright Office for $35. Why? Because that was the only clear law the person who posted the photos was actually violating. Because they were selfies, my client’s daughter owned the photos—she took them—and so by posting them, her ex had violated her copyright. Not her body, not her autonomy, not her freedom to live in the world without having been exposed unwillingly to 30,000 strangers, but her copyright. And if they hadn’t been selfies? Well, she likely would have been out of luck. (For anyone whose selfies were posted without consent under the “twitter purge,” you can also send a takedown notice to Twitter.)
As the practice of distributing images and videos of mostly young women without their consent has exploded, government response at the state level has been considerably swift. Eleven states now ban some version of what has come to be known as revenge porn, and around two dozen more are considering similar legislation. There’s also been movement at the federal level led by Rep. Jackie Speier of California. But critics argue that we shouldn’t ban revenge porn because it will impede free speech, most notably the ACLU, which has objected on First Amendment grounds to the majority of legislative efforts around the issue, arguing that the “posting of otherwise lawful speech or images even if offensive or emotionally distressing is constitutionally protected.” Adi Kamdar of the Electronic Frontier Foundation, which has also opposed revenge-porn legislation, says, “We generally don’t think that finding more ways to put people in prison for speech is a good thing.”
This concern is founded and to a certain extent, critical: If laws banning revenge porn are drafted sloppily, they could encompass way more than just revenge porn, and in doing so make things a crime that just shouldn’t be crimes. That’s a scary thing, and unfortunately it appears to be happening—Michigan and Arizona have proposed or passed laws recently that are so broad, a journalist could theoretically get arrested for sharing a photo a politician took and tweeted of his junk, or, more disturbingly, the Abu Ghraib abuse pictures. These laws will almost certainly be challenged; many think they’ll be overturned as violating the First Amendment, and I can’t disagree.
But what about laws that are more specific? California’s revenge-porn law, passed last fall, is an example of one that looks pretty good—it makes it illegal for a person to distribute, with the intent to cause serious emotional distress, a photograph or recorded image of the intimate body part or parts of someone else under circumstances where all parties understood that the image should stay private. It also creates a private right of action—meaning victims can sue in civil court (as opposed to the state bringing a criminal case)—for the same thing. In the private lawsuit, the distribution doesn’t have to have been intended to cause emotional distress—it could just be “reckless.”
The good news is that journalists are off the hook under California’s law as long as they aren’t journalists who post photos to distress their exes. But a large number of critics still don’t like the California law, arguing from various positions that it still violates the First Amendment, or that it’s so specific, it’s pointless. Like all revenge-porn laws, it’s also going to be very difficult to enforce, as #twitterpurge illustrates. What happens when a guy in Idaho tweets a photo of a girl in California? What happens when users hide behind fake accounts, adding a layer through which law enforcement or private investigators must dig to locate the offender? If the person photographed is under 18, it’s child porn, and if it’s a selfie, there’s the copyright issue. But everything else is shrouded in gray.
Then there’s the issue of who is targeted: Most victims are young—teenage or twentysomething women. A young woman walks into a precinct to file a complaint because a photo of her boobs is online—like it or not, it’s not easy to imagine her being much of a priority.
That’s exactly why we need these laws—if, for nothing else, as a start to signaling what society values. The Violence Against Women Act provides a good example of what I’m talking about. The act, passed in 1994, did a bunch of stuff, including providing funding for services for victims of rape and domestic violence and creating for the first time a federal right for victims to sue their assailants for gender-based violence. From 1994 to 2011, the rate of serious intimate partner violence declined by 72 percent, and sexual assault decreased by 60 percent between 1993 and 2006 (although these exact numbers are controversial because, of course, rape is rife with reporting problems).
So this decline in violence must be because women are suing their attackers in federal court and winning, right? Nope. That part of the act was struck down in 2000 as unconstitutional (a states’ rights issue). The Violence Against Women Act represented a culture in which the government finally, after tireless efforts by women and the men who supported them, began to take violence against women seriously. It was only a piece of a swarm of similar activity happening at the state and federal levels—states were getting rid of their exemptions for marital rape, enforcing restraining orders across state borders, and training court personnel on dealing with domestic violence—but together, it all made a difference.
Today, revenge porn is the domestic violence of the ’90s—an unquestionably gendered problem for which some laws are going to be too broad and some are going to be too narrow. Law professor Mary Anne Franks of the Cyber Civil Rights Initiative has drafted model laws whose breadth nonetheless draw ongoing criticism. I’m not sure what the perfect law looks like. But arguments that revenge porn should be dealt with outside of legislation sound too much like calling a woman’s beating by her husband a “domestic dispute.”
Listening to smart, powerful people argue that revenge porn legislation is “too messy” or “too risky”—yes, I’ve heard people say this—is infuriating. They might as well be saying, “Take your girly issue elsewhere.” Or the one I’ve heard more times than I can count is, “Just stop taking naked photos.” In that case, there’s no need for domestic violence laws either, I guess. Women should just stop marrying men who abuse them, too—problem solved.
