California Senate to Consider Bill Criminalizing Revenge Porn

In the wake of a Florida bill to criminalize revenge porn (which died after failing to receive a final vote before the Florida legislative session ended), a California state senator has introduced Senate Bill 255.  SB255, as introduced by Sen. Anthony Canella (R-Ceres) would make it a misdemeanor to engage in a wide variety of acts associated with “revenge porn” — the practice of sharing nude photos of someone in order to sate a fleeting desire for revenge.

While I largely agree with Eugene Volokh (UCLA law professor and renowned First Amendment scholar) that revenge porn is not likely protected by the First Amendment (and I take great pride in shaming revenge pornographers), any legislative attempt to provide legal remedies for revenge porn victims must be narrowly drawn in order to be effective.  If a bill is drafted in a manner that reaches too much protected speech, a revenge porn defendant might successfully escape prosecution by challenging the statute on overbredth grounds.

While the bill is in its earliest stages and can hopefully be amended, SB255 as drafted goes too far, criminalizing even linking to a revenge porn post.

The pertinent part of SB255 as introduced reads:

Every person who, with the intent to cause substantial emotional distress or humiliation, by means of an electronic communication device, and without consent of the other person, electronically distributes, publishes, emails, hyperlinks, or makes available for downloading nude images of the other person along with personal identifying information of the other person, is guilty of a misdemeanor punishable by up to one year in a county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment.

As written, SB255 would mean that when I publish this link to revenge pornographer Craig Brittain’s nude images on his own site, with the intent of humiliating him by pointing out that he’s as ugly on the outside as he is on his sociopathic inside,  I would be guilty of a misdemeanor.

Similarly, the bill would run into significant problems with Section 230 of the Communications Decency Act, which generally exempts online publishers from liability for content submitted by users.  Although CDA 230 is generally understood to exempt publishers from civil liability, it also applies in the context of state criminal laws.  (Congress made sure to exempt Federal criminal laws from the protection offered to publishers by CDA 230, but did not do so with regard to state criminal laws.)

That means that any prosecution of a revenge porn site operator under SB255 would have to meet the rigors of CDA 230 first.  While I believe that most revenge porn sites shouldn’t qualify for CDA 230 protection, civil cases against site operators are still in their infancy, and there’s little clarity as to how CDA 230 applies to revenge porn sites.

SB255 is classified as “urgent,” a designation which means that its impact on the health or safety of the public is immediate.  The “urgent” designation allows the bill to become effective immediately after being signed by Gov. Brown, whereas non-urgent bills become effective on the January 1 following the bill’s enactment.  However, the “urgent” designation also requires a two-thirds vote from each legislative chamber.

For those who support the criminalization of revenge porn, SB255 is a good start.  But in order to be successfully applied, the bill needs clarification.

  • dese1ect

    So if you or I link to a revenge porn site to decry it, we are running the risk of this bill.

    • http://www.facebook.com/johnny.swift.5264 Johnny Swift

      lol. that’s why this bill is a joke and nothing but political grandstanding.

    • doctor_spaceman

      Legal issues aside, if you’re trying to condemn a revenge porn website, linking to it is rather ridiculous. You’re just giving them more traffic and providing easier access for a new audience. From what I understand of the law, it looks like you can write the name of the website, you just can’t include a hyperlink. Plenty of people write about the evils of child porn without linking to specific websites; why should this be any different?

  • http://www.facebook.com/basil.forthrightly Basil Forthrightly

    While in general a linking prohibition would and should be overbroad and run afoul of constitutional scrutiny, I would hope that two types of linking behavior could be prohibited.

    The first would be link aggregators, folks who run a business whose primary model is to benefit from the revenge porn without running the risk of hosting it themselves. I suspect hosting will eventual move overseas and/or onto the dark net, and someone will try to run a business gatewaying people to the product. The bill of course would have to be narrowly drafted so as not to endanger normal search, but still prevent gaming by site operators. In these days of advanced analytics, any site getting more than 10% of a months revenue from revenge porn traffic should be very suspect, though a small time blog with legitimate linking and commentary could see a viral traffic spike and ought not be penalized. Getting legal language right will be tough, but I think it’s doable, but will require better minds than mine.

    The second would be someone running around the net, planting links on someone “with intent”. Again, a bill’s language will be critical. It will need to cover not just the the angry ex who engages in link spreading, but also the thrill-seeker/pervert who likes to “share”. One can infer intent based on frequency of link posting and the choice of forum and associated commentary. Posting a single profile link on a singles dating site ought to be actionable, but posting an exemplar link for news/politics/social commentary ought not (though posting a sites home page or internal search results link is better and more responsible). I can’t see how such a bill could create a perfect sieve, and it ought to favor free speech, but I think we ought to try and a carefully crafted bill could survive a first amendment challenge.

  • http://www.facebook.com/johnny.swift.5264 Johnny Swift

    Adam, how do you respond to this?

    This is a stupid law. If I own the pictures (either cuz I took them myself or cuz u sent them to me), then why can’t I do whatever I want to with MY PROPERTY?

    It is not against the law to put someone’s name & info on the internet. All kinds of “people finder” websites do this. Nor is it illegal to put someone’s picture on the internet. But when you combine the two, it somehow is illegal? That makes no sense.

    The Govt has no business telling me what to do with MY property!!

    Copyright law is well settled in American and international law. This law would upend that. Plus, it would create a prior restraint on someone’s speech based simply on the assumption that someone’s feelings might be hurt.

    Content-based restriction of speech must survive strict scrutiny. This law could not survive a strict scrutiny review. Preventing hurt feelings is not a compelling governmental reason, otherwise we will need a lot more laws on the books. See U.S. v. Playboy Entertainment Group, 529 U.S. 803 (2000) (Government’s interest in criminalizing speech that inflicts emotional distress is not a compelling one).

    See also U.S. v. Cassidy, __ F.Supp.2d __, 2011 WL 6260872 (U.S. District Court for the District of Maryland 2011).

    It is not the job of the DA or police to be baby sitters or life coaches.

    • http://www.facebook.com/basil.forthrightly Basil Forthrightly

      Transferring a copy doesn’t transfer copyrights, so unless you took the photo yourself its not your “property”, no more than Dan Brown’s new book is “mine”, even though I have a copy.

      Revenge porn sites which operate on user submission are potentially protected from copyright liability be section 230 of the DMCA. Section 230 is NOT constitutionally necessary, so it would be perfectly acceptable for Congress to tweak the law to remove operator protection for nude pictures that are copyrightable. They would probably have to draft the language carefully, to put the onus on porn-focused sites and not general services.

  • Bill

    I hate these pricks but law, and particularly this law aren’t hte answer. A big problem is that they aren’t revenge sites at all – they are Social Engineer posts and Photobucket Flaw sites. I don’t know how you could implement it, but if someone had photo bucket hacked,there should be some recourse. Bing has been absolutely wonderful about helping victims, Google not so much. They refuse to link things for all sorts of reasons – ifthe stuff was up and viewable but wasn’t easily found on searches, the problem would largely remedy itself ( the victims have already come to terms with the fact people have seen the stuff, they just don’t want employers, future schools etc seeing it particularly 10 years from now). I think a good public shaming of Google in particular would do the trick.

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