Kevin Bollaert Sentenced to 18 Years Over Revenge Porn Site “You Got Posted”

Kevin Bollaert was sentenced by a San Diego court to 18 years in prison following his February conviction on twenty-seven counts of extortion and identity theft.  Bollaert was the chief operator of YouGotPosted.com (later uGotPosted.com), which published the nude photos of over ten thousand men and women, almost uniformly without their permission.

Bollaert, with his partner Eric Chanson 1, monetized his site with both advertisements and a more devious plan.  He launched ChangeMyReputation.com, which ‘advertised’ on YouGotPosted as an independent service which could remove the photos from YouGotPosted in exchange for a few hundred dollars.  I wrote about Bollaert’s site before his arrest, demonstrating that he operated both YouGotPosted and ChangeMyReputation.com.

Kevin Bollaert is the first revenge porn site operator to be convicted and sent to prison.  Hunter Moore, widely viewed as the progenitor of revenge porn sites, will be sentenced in June after taking a plea deal on CFAA charges.  Craig Brittain, the patron saint of harnessing revenge porn as a means of extortion, somehow escaped with only a light bruising on the wrist from the FTC, despite having the most bizarre (and malicious) plot.

During sentencing, four victims testified.  One testified that her parents had disowned her when they saw the photos on the website and that she’s been homeless since.  Another asserted, similarly, that her parents had largely cut contact with her as a result of the photos being posted, and that she had lost her religious faith because of the resulting trauma.  Another, who serves in the armed forces, said he would not re-enlist at the end of his service, due to the embarrassment in front of and harassment from colleagues. One noted that she found out about the posts because she received four hundred Facebook messages.  The victims almost uniformly noted a constant concern that people looking at them in public were doing so because they recognized them from the site — one expressed a constant worry that the people he met had likely seen he and his wife on the site before they even met him.

Bollaert’s parents also spoke, his father struggling to gain composure before reading a prepared statement.  They both noted their embarrassment from what their son had done, and the impact it had on the victims’ lives.  They asked that the judge be lenient, as Bollaert couldn’t begin to recompense his victims from a jail cell, but could get a job with a family business.

Bollaert had a prior conviction for making false statements in connection with the purchase of a firearm.  That prosecution arose out of Bollaert’s purchase of 31 semiautomatic weapons, believing that they could be stored and then sold at a profit if the Obama administration pushed new gun control laws.  The ATF apparently took notice of the large quantity of firearms and saw that Bollaert had filled out a form using his PO Box, when his residential address was required.  Prosecutors used this conviction to paint Bollaert as living off the grid and attempting to create new income streams in gray legal areas.

The prosecution also noted that Bollaert had $20,000 cash in a backpack when he was arrested, apparently the fruit of extortionate payments from the site’s victims.  This, they argued, was an indication that Bollaert knew that his conduct was less-than-lawful, countering the defense’s argument that Bollaert believed that his site was legal — in part, at least, because of Hunter Moore’s crowing about how nobody would stop him and that his site was legal.  (I would have also pointed out that Bollaert hid the fact that he ran both the “ChangeMyReputation” site and the revenge porn site, which indicates that he knew it would look extortionate if he solicited payments directly.)

Bollaert did not testify at trial, nor did he call any witnesses.  His case, I’m told, largely centered on (1) the argument that his conduct did not meet California’s statutory definition of extortion; and (2) a defense under §230 of the Communications Decency Act.  I believe that Bollaert has a fairly strong argument that his conviction is barred by §230.  I discuss his possible arguments after the jump.  (It’s rather boring — and I’m probably wrong, but someone has to raise these issues, even in defense of a revenge porn site extortionist.  Only Nixon could go to China, I suppose.)

Bollaert’s Chances on Appeal

I believe that Bollaert will likely be able to overturn his conviction on appeal.  While his conduct probably amounts to extortion under California law, his prosecution is probably barred by §230.

1. Does Bollaert’s conduct amount to extortion under California Penal Code §518?

Bollaert was charged under California Penal Code §518, which defines extortion as the “obtaining of property from another, with his consent… induced by a wrongful use of force or fear[.]”   §519 subsequently defines “fear” as, in relevant part:

Fear, such as will constitute extortion, may be induced by a
threat of any of the following:
   1. To do an unlawful injury to the person or property of the
individual threatened or of a third person.
   2. To accuse the individual threatened, or a relative of his  or her, or a member of his or her family, of a crime.
   3. To expose, or to impute to him, her, or them a deformity,
disgrace, or crime.
   4. To expose a secret affecting him, her, or them.

The state would only have to show that one of these definitions applies.  Bollaert’s best arguments probably center on arguing that he only sought payment and removal after the victims’ nude images were posted.  Thus, he’s not demanding payment upon a threat to expose the photos: they’ve already been exposed.  He’s simply offering to not continue publication of what’s already been exposed.

This argument is novel, but probably insufficient.  It can just as easily be stated that Bollaert was offering not to “expose” the photos to more people.  I doubt an extortion charge could be avoided by telling one person (or even a group of people), then demanding payment to prevent telling others.  Say I know of your infidelity with your secretary, and I tell several of your coworkers or friends.  Would I still be “exposing” a “disgrace” if I threaten to tell your wife unless you pay me $500?  Of course.

Further, if exposing once (or several times) prevented future demands from amounting to extortion, that would undermine the purpose of §519(4), which relates to the exposure of a “secret.”  It may very well be true that something is no longer a “secret” if others know, even if the circle of people with that knowledge is limited.  The fourth subsection has to serve some purpose distinct from (3).

In other words, Bollaert’s chances of overturning his conviction on this basis are probably slim.

2.  Does CDA §230 immunize Bollaert against prosecution by the state for his extortionate practice?

Bollaert could argue that §230 bars prosecution for identity theft or extortion.  While Section 230 is most commonly understood to prohibit civil actions which treat an information content provider (i.e., a website which allows users to post content) as if they were the user who posted the offending material, it also bars state criminal proceedings which treat a website (or its owner) as the publisher of user content.

If Bollaert does appeal, he has a good chance at success with respect to the identity theft charges (assuming Bollaert himself didn’t seek out the victims’ personal information).  Simply publishing content submitted by users — even if the avowed purpose of the site was to promote invasion of privacy and tortuous conduct — is immunized by §230.

Bollaert also has a decent chance at overturning his conviction for extortion.  While I’m unable to find any criminal case in which a defendant charged with extortion raised a §230 defense, comparable civil cases provide him with a strong argument.  (Most states do not provide an independent cause of action for extortion; California does, as noted below.)

The courts which have addressed extortionate behavior in the civil context have indicated that §230 likely immunizes that conduct.  §230 applies to website operators even when they exercise traditional editorial functions.  In Ascentive, LLC v. Opinion Corp., a federal district court in New York addressed consumer gripe site PissedConsumer.com’s “Corporate Advocacy Program”, a “premium reputation management service” under which PissedConsumer would remove negative reviews (if the consumer refused to allow PissedConsumer to act as an intermediary in resolving their complaint) and resolve new complaints before they are posted.  The plaintiffs brought RICO claims against PissedConsumer, including predicate acts of “commercial bribery or extortion.”  The district court, in denying the plaintiffs’ motion for a preliminary injunction, ruled that the plaintiffs had not demonstrated a likelihood of success on the extortion allegations.

The court cited, in passing, Zeran‘s statement that “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred” by §230.  The court fudged a bit in its discussion on this point, noting only that PissedConsumer “invite[s] postings and then in certain circumstances alter[s] the way those postings are displayed” — not exactly addressing that one of these alterations was the complete cessation of publication of the complaints.  But this provides the framework for Bollaert’s argument: that his removal of posts is something an editor might normally do.

Opinion Corp. could be distinguished.  First, while an editor might make decisions about whether or not to publish (or remove) something, the act of taking payment as a solitary condition of doing so is probably not traditional.  Second, and relatedly, PissedConsumer’s conduct can be criticized, but they’re actually doing something other than simply removing a post.  Providing some service (e.g., helping to mediate disputes and making a decision about the merits of the post, and whether to continue its publication) arguably isn’t extortion in the first place and, moreover, demonstrates some editorial discretion relating to the content of the post itself.

Similar arguments in this context, however, have been rejected.  In Levitt v. Yelp, a federal district court 2 in California had the rare opportunity to address the relationship between extortion and §230.  In evaluating the “traditional” functions of an editor, the court rejected arguments that the site owner’s purpose or motive is irrelevant: there is no “bad faith” exception to §230.  Yelp’s alleged motivation of profiting by removing positive reviews (and thereby highlighting negative reviews) unless businesses paid Yelp was irrelevant to the question of whether it was exercising traditional editorial functions, including making the decision of whether to post or remove those reviews.  Likewise, that Bollaert’s sole motivation was to subject his editorial discretion to one test alone (whether he was paid) is irrelevant to whether he was exercising the traditional function of posting or removing the offending content.

I’m not sure Bollaert will be successful on appeal.  His arguments are somewhat novel and I suspect an appellate court will be looking for ways to avoid overturning his conviction, if only because of the nature of his site.  If it is overturned, it will effectively prevent state prosecution of revenge porn site operators (and similar sites) for this type of conduct.  That would leave it to federal prosecutors begin calling this type of practice what it is — wire fraud — or pursuing extortion cases of their own, which would not be barred by §230.

Notes:

  1. Eric Chanson has not been charged in connection with this site, but was described by prosecutors as a co-conspirator.
  2. The case was appealed to the Ninth Circuit, which upheld the district court on a narrow interpretation of extortion laws without reaching the §230 issues.

19 comments

  1. Scott Jacobs says:

    “and I’m probably wrong”

    I mean, it isn’t like you’re a lawyer…

  2. TheBrett says:

    Excellent news, and I really hope he doesn’t get it flipped in appeal. If only Hunter Moore had gotten a sentence of 18 years.

  3. Michael Graves says:

    the prosecution only needs to open up the evidence of the posters on the site and an entire can of worms will come spilling out that Bollaert will not want exposed. Yep, he got a good deal on his sentence . Half of what he is guilty of did not come out in court. I am sure it was to speed up his conviction and nail him fast to send home a message .

  4. Ben says:

    need to go after the myex guys next

  5. James Gundlach says:

    This is ridiculous! All he did was make a WEBSITE…

    The real people to go after are the exes who had malicious intent to post nude photographs of their exes!

    And to the parents who disowned their daughter… WTF were you doing on that site to begin with??? You’re obviously looking up porn and you want to disown your daughter for something their EX did? What a piss poor example of being a parent, YOU should be criminally charged for incest because most likely you were masturbating to your daughter you sick F***’s.

    • Ben says:

      you should realize, when the women’s social media links are posted and other info, guys terrorize her family and send them pics and links and whatever else.

      • James Gundlach says:

        So, let’s send a guy to 18 years in jail for the actions of others? How does THAT make sense and how does THAT punish the EX’s who are posting the pictures and info and the people who are doing the harassing?!

        How can the poor girls family disown their own daughter for the actions of her ex while THEY were the one’s on a website like that?! It’s perfectly fine for THEM to look up revenge porn and then disown their own child when that kind of material is used against them???!!!

        Do people LACK common sense?!

        • Ben says:

          He was convicted for extortion etc. He’s just a piece of shit for the other stuff.

          You seem to be a bit detached from reality. Families are not seeking out nude pics of their daughters on various revenge porn sites. They are either sent disguised links via FB or the actual pictures, phone calls are made to their homes and they are hounded with all that from numerous people. A simple message on FB would be Titled ‘Hey Mr. Stevens I’m in your daughter’s art class at school’ the message would be ‘she made this for you and wanted me to send you a picture of it’ attached or a link to the girl choking on a dick, being mounted or masturbating on cam.

  6. ifisch says:

    When it comes to the extortion charge, I’m left wondering about the word “secret” in “To expose a secret affecting him, her, or them.”

    Do these photos really constitute a “secret”? They’re pictures of naked women, possibly engaging in sex acts, but does that make them “a secret”? Obviously these women allowed someone to take their picture and then keep it.

    What “secret” is the defendant meant to be threatening to expose here?

    • hysteria says:

      The state would only have to show that one of these definitions applies. Bollaert’s best arguments probably center on arguing that he only sought payment and removal after the victims’ nude images were posted. Thus, he’s not demanding payment upon a threat to expose the photos: they’ve already been exposed. He’s simply offering to not continue publication of what’s already been exposed.

      This argument is novel, but probably insufficient. It can just as easily be stated that Bollaert was offering not to “expose” the photos to more people. I doubt an extortion charge could be avoided by telling one person (or even a group of people), then demanding payment to prevent telling others. Say I know of your infidelity with your secretary, and I tell several of your coworkers or friends. Would I still be “exposing” a “disgrace” if I threaten to tell your wife unless you pay me $500? Of course.

      • ifisch says:

        Right. I understand that only one element must apply for him to be guilty of extortion.

        In this case, the 4th definition (exposing a secret) is the only one that would possibly apply. I’m asking if this was really “exposing a secret”.

        • hysteria says:

          Of course these photos are the same as a secret, they were taken in the private of peoples homes only meant for the eyes of the person they were given to. They were never meant for public use, the consent of the person was never asked and in some cases the photos were obtained by hacking into the persons email account and stolen! Every single time a person looks at these photographs without the consent of the person in the photograph, its equivalent to private information being made public.

          Secret: not known or seen or not meant to be known or seen by others

          • ifisch says:

            Assuming that the photos were obtained legally, then they’re owned by the person who took them. That person is free to do what he wants with them, including posting them on the internet.

            So why should these be deemed “a secret” as a matter of law? If the photos were simply of women in the park, taken by their boyfriends, would that be automatically deemed “a secret” too? Does the fact that they’re naked/sexual make them a secret as a matter of law?

        • AdamSteinbaugh says:

          I think (3), with respect to having taken nude photos being a “disgrace”, would also apply.

  7. Christopher Stone says:

    Say that every post on this guy’s site had its own PayPal button whereby any user–including but not limited to the post’s subject whose photos have been published in the post–could take down a post and all its photos by paying via PayPal, in such a way that Bollaert himself never handled takedown requests or removed posted and that the takedown process was entirely automated: Bollaert would then enjoy immunity under Section 230. The site admin could even install an image filter that prevents new uploads of images whose removal has already been paid for, because repeatedly charging to remove the exact same image could be perceived as unlawful. It was Bollaert’s actively negotiating the removal fees and his personal removal of the posts that creates the controversy about Section 230 immunity. Also, the very domain name of the site UGotPosted.com is readily understood to encourage revenge porn, and the choice of a domain name that encourages unlawful conduct can make 230 immunity problematic. Compare Bollaert’s UGotPosted.com to Hunter Moore’s IsAnyoneUp.com, a name whose connection to revenge porn is arbitrary.

  8. Shawna Andrews says:

    Any evidence of the extortion in the released court dockets? Like threatening emails from Bollaert to the victims?

    For him to have been prosecuted 6 times, I’m guessing he actually did contact them and threatened them with an illegal act unless given something of value.

  9. Snoopy says:

    It could all be so easy. “Don’t be a whore” is actually a thing.

  10. AngeloWhite says:

    He deserved it.

  11. k says:

    Payback is a bitch, and no doubt he’s some BIG Buck’s bitch right now.

Leave a Reply to James Gundlach Cancel reply