In today’s digital world it has become quite common for jilted lovers to publish intimate photos and videos of their ex-significant other on the web in the aftermath of a contentious breakup. The growth in popularity of so-called “revenge porn” has led to the emergence of pornographic websites wholly dedicated to the material. These sites typically publish the video or image along with the victim’s name, email address, and often even link to their Facebook profile. The most famous of these sites, Is Anyone Up, has recently come under FBI investigation due to allegations that some of its submissions were obtained as a result of illegal hacking. However, the vast majority of the sites operate without liability due to protections in the Communications Decency Act, which protects sites hosting user-generated content. Nevertheless, advocates like Holly Jacobs have founded advocacy groups, like End Revenge Porn, pushing to end the practice.

The state of California is now taking steps to criminalize revenge porn. California SB 255, which has already passed the California Senate, would make it a misdemeanor for anyone to distribute an image with “intent to cause serious emotional distress.” Prosecutors would have to prove that there was intent to cause emotional distress and that serious emotional distress actually occurred. This bill is an amendment to a privacy law which already criminalizes secretly recorded images. New Jersey is the only other state with a similar statute, but the California bill goes one step further by squarely focusing on revenge porn. First offenses could result in a 6 month prison sentence and a $1,000 fine, while subsequent offenses would result in a year-long sentence and a $2,000 fine.

The bill is narrowly tailored in that it only applies to images that were recorded originally with consent by the person who does the subsequent distribution. Therefore, instances of “sexting” in which an individual photographs themselves and sends it to another would not be covered by SB 255. Photos shared over applications like Snapchat would presumably fall into this category (and outside the statute) as well. Critics of the bill point out that while revenge porn is a growing problem, this provision could raise First Amendment questions, and in fact the only California state senator to vote against the law made statements voicing these concerns. While proponents of the bill hope that it will lead to similar statutes being enacted all over the country, it will almost certainly face legal challenges in California if it becomes law. Whether it will survive those challenges remains to be seen.

A final note for those readers who are fans of the HBO series The Newsroom: while a New York revenge porn law might have helped Sloan with her recent troubles, it would not necessarily have stopped her from punching her ex-boyfriend in the face.

–Thomas McFarland

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One Response to California Seeks to Criminalize “Revenge Porn”

  1. Jacob Schumer says:

    I think this law would withstand First Amendment scrutiny pretty easily. Even if not, California doesn’t lose much by passing it other than the legal fees for whatever dirtbag first gets charged under the law.

    I think the more interesting issue comes from the fact that technology is increasingly moving toward automatically storing every picture in the cloud. Some of these clouds are publicly accessible, or can be made publicly accessible on the whole. Not only would this create suspicion on innocent parties, but guilty parties can simply say that they accidentally uploaded the picture to the cloud/forgot the picture was in the album, and someone else sent the picture to the revenge porn site.

    Of course, Snapchat is eroding the revenge porn problem at the source, so the issue may be a flash in the pan.