by: Kathryn Della Fera
In the past decade the Internet has carved out a new category on Maslow’s hierarchy of basic needs: food, shelter, air, web browser. From the moment we silence our alarms to the moment we command Google to wake us up in eight hours, we are connected. At this point, it is fair to say that most of us spend more time in virtual reality than physical reality.
As one would imagine, as we shift our lives from physical interactions to cyber interactions, our behaviors—both good and bad—follow. While the Internet serves as a platform for us to enhance our positive physical realm behaviors (i.e. teach, buy, sell, organize, share thoughts, etc.), it also serves as a new platform for us to expand our negative, often criminal, behaviors (i.e. harass, extort, stalk, etc.).[1] What is particularly concerning about the rise of criminal behaviors on the Internet is the unique, novel forms they take, and the subsequent inability of the legal system to recognize, comprehend, track, and eradicate them. [2]
Nonconsensual pornography (NCP), commonly know as “revenge porn,” is one of the detrimental, criminal behaviors that has been able to thrive in the conditions provided by the World Wide Web.[3] NCP is defined as the nonconsensual distribution of private, sexually explicit images.[4] This disclosure can be done through social media networks, messaging platforms, websites dedicated to the distribution of these types of images, etc., and can be motivated by anything from revenge, to a desire to make money, to a need for entertainment or upvotes.[5] Furthermore, the image or video that is shared without consent might have been taken voluntarily (i.e., by the person pictured–a selfie– or by a friend or significant other) or involuntarily (i.e. by a voyeur or a hidden camera placed to capture a sexual encounter).[6]
Victims of NCP suffer devastating consequences including extreme emotional distress; current and prospective job loss; damaged relationships with friends, family and current partners; and destruction of reputation.[7] In the worst cases, the combination of these dreadful effects has resulted in suicide. [8] To make matters worse, in some instances, not only will a victim’s intimate photo be shared, but his/her full name, address, and phone number will also be posted.[9] Unfortunately, nonexistent state laws or gaps and inadequacies in existing state laws leave many victims with little to no recourse against their perpetrators.[10]
Due to the efforts of the Cyber Civil Rights Initiative (CCRI), thirty-one states and the District of Columbia have passed laws criminalizing NCP since 2013.[11] While this is a monumental feat, the focus must now be shifted to the passage of federal legislation.[12] In July 2016, Representative Jackie Speier, who worked closely with CCRI, introduced the Intimate Privacy Protection Act (IPPA), a federal bill criminalizing NCP.[13] Three reasons make the passage of this bill a no-brainer: 1) many state laws are written too narrowly to capture the range of behaviors that comprise NCP; 2) law enforcement officials in states with laws that criminalize NCP are unaware of the existence of the laws or prefer to refer cases to the FBI; and 3) state laws are not an adequate mechanism for catalyzing the paradigm shift necessary to change the way cybercrimes are approached by the legal system.[14]
The IPPA would remedy all of the problems with state laws listed above. First, the federal bill is written broadly enough to capture a range of behaviors that can be classified as NCP.[15] For example, the IPPA’s intent requirement is “reckless disregard for the person’s lack of consent.”[16] A “reckless disregard” intent requirement allows broader prosecutorial discretion than the intent requirement of many state laws, such as Florida’s for example, which requires the perpetrator to have the “intent of causing substantial emotional distress of the depicted person.” [17] This means that a perpetrator who shares a photo for financial gain, can not be prosecuted in Florida. Furthermore, the IPPA is broad enough to capture a wide range of images, including selfies. [18] Furthermore the IPPA makes NCP a crime punishable by a fine or imprisonment up to five years. This punishment, unlike that of many state laws, is both a powerful deterrent and adequate form of retribution.[19]
The Intimate Privacy Protection Act will give law enforcement officials and victim advocates a clear solution for helping victims of NCP. Many law enforcement officials and victim advocates’ first instinct when met with a victim of NCP is to refer him/her to the FBI.[20] Furthermore, many of them do not know that a state law criminalizing NCP even exist or how to apply them when confronted with an example scenario. [21] Moreover, many of those who are the first to respond to victims believe that laws relating to NCP are necessary at the federal level.[22] The passing of the IPPA will allow local law enforcement officials to refer cases to the FBI, and will remedy jurisdictional issues that the Internet poses; for example, how to deal with cases where the victim is in one state and the perpetrator is in another and the act occurred on the Internet. [23]Passage will also most likely lead to educational programs directed at law enforcement officials focusing on how to better handle and understand crimes that occur in cyberspace.
While the Internet has been referred to as the Wild West since its birth, the image of a lawless setting where anything goes and crime is left unpunished has to change. [24] There must be a shift away from this dominant paradigm and towards one in which victims of cybercrimes can be just as confident in their options for legal recourse as victims of crimes that occur in the physical world.[25] The Intimate Privacy Protection Act will spur this shift in thinking by providing an example of how behaviors with devastating consequences that take place on the Internet can be tackled by the legal system. A federal bill will catalyze a change in the behaviors of lawyers, judges, law enforcement officers, victim advocates and lawmakers who are bound to address other crimes that occur in cyberspace. The passage of this bill will carve out new ways of thinking that will only better serve to help victims in the future.
[1] See Danielle Keats Citron, Hate Crimes in Cyberspace 102 (Harvard University Press, 2014).
[2] See id.
[3] See, Mary Anne Franks, Frequently Asked Questions, Cyber Civil Rights Initiative (last visited September 22, 2016), http://www.cybercivilrights.org/faqs/.
[4] See id.
[5] See id.
[6] See id.
[7] See Carrie Goldberg, The IRL Impact of Google’s New “Revenge Porn” Policy, Cyber Civil Rights Initiative (June 23, 2015), http://www.cybercivilrights.org/the-irl-impact-of-googles-new-revenge-porn-policy/.
[8] Rachael Krishna, This Woman Killed Herself After Her Sex Tape Became A Meme, BuzzFeed (September 15, 2016, 12:09 PM), https://www.buzzfeed.com/krishrach/this-woman-reportedly-killed-herself-after-an-explicit-video?utm_term=.abgwmD0nk#.xxwAVnWZD.
[9] Vicki Hyman, N.J. Revenge Porn Victim Tells Her Story in Showtime’s ‘Dark Net,” (January 20, 2016, 4:00 PM), http://www.nj.com/entertainment/tv/index.ssf/2016/01/dark_net_showtime_anisha_vora_revenge_porn.html.
[10] See Mary Anne Franks, It’s Time for Congress to Protect Intimate Privacy, The Huff. Post (July 18, 2016, 1:32 PM), http://www.huffingtonpost.com/mary-anne-franks/revenge-porn-intimate-privacy-protection-act_b_11034998.html.
[11] See id.
[12] See id.
[13] See id.
[14] See generally Danielle Keats Citron, Hate Crimes in Cyberspace 72-91 (Harvard University Press, 2014).; see also id.
[15] See, Mary Anne Franks, It’s Time for Congress to Protect Intimate Privacy, The Huff. Post (July 18, 2016, 1:32 PM), http://www.huffingtonpost.com/mary-anne-franks/revenge-porn-intimate-privacy-protection-act_b_11034998.html.
[16] See id.
[17] See id.
[18] See id.
[19] See id.
[20] See Danielle Keats Citron, Hate Crimes in Cyberspace 85-88 (Harvard University Press, 2014)
[21] See id.
[22] Based on anecdotal evidence from personal research.
[23] Williams Pelegrin, Revenge Porn Could Become A Federal Crime In the United States, Digital Trends (Febrary 25 2015 12:09 PM), http://www.digitaltrends.com/web/national-revenge-porn-bill-could-be-a-law/.
[24] See Danielle Keats Citron, Hate Crimes in Cyberspace 19 (Harvard University Press, 2014)
[25] See id.
