ACLU worries proposals run afoul of the First Amendment
By Anne Flaherty
Associated Press
WASHINGTON (AP) — Annmarie Chiarini’s long-distance boyfriend was goading her to pose nude. The pictures would be for his eyes only, Chiarini recalls him saying, because she was so beautiful and because he missed her so much. He promised, she said, they would be stored on a compact disc and hidden in his drawer.
Chiarini believed him — until they broke up and the CD was auctioned on eBay with a link emailed to her friends and family. Copies were later mailed to her son’s Catholic school kindergarten teacher and the department head at the college where Chiarini taught English. The images eventually wound up on a pornographic video-sharing site, earning 4,000 views in less than two weeks.
“I was horrified,” said the 42-year-old single mom living in Towson, Md. “The night he said he was going to do it, I called the police in an absolute panic and tried to explain what was going on. I said, ‘He’s threatening to put these pictures of me on an eBay auction,’ and they (said), ‘So?’”
It’s called “revenge porn,” and it’s legal in every state but California and New Jersey. A person shares a sexually explicit photo or video with a partner, only to see those images pop up online months or even years later — typically after a bad breakup. The images are often tied to the person’s name, address and phone number. And in a particularly disturbing twist, some of the sites appear to be running side businesses offering “reputation protection services": Dump $500 into a PayPal account and maybe they will take down your photo.
An increasing number of states, including Maryland, Wisconsin and New York, are considering whether to make it illegal to post any sexually explicit image online without that person’s permission. But groups like the American Civil Liberties Union and the Electronic Frontier Foundation say they worry such proposals run afoul of the First Amendment.
“We generally don’t think that finding more ways to put people in prison for speech is a good thing,” said Adi Kamdar, an activist at the Electronic Frontier Foundation. “A lot of times, these laws — if they aren’t narrowly focused enough — they can be interpreted too broadly.”
Mary Anne Franks, a law professor at the University of Miami who is helping states draft revenge porn laws, counters that sharing a nude picture with another person implies limited consent similar to other business transactions.
“If you give your credit card to a waiter, you aren’t giving him permission to buy a yacht,” Franks said.
The precise scope of the problem is unclear because many victims never come forward or are frequently turned away by the police. Two of the most popular revenge sites have gone dark in recent years amid hacking allegations and a class-action lawsuit. But advocates estimate there are dozens of other sites that continue to post pornographic images without that person’s consent.
Law enforcement officials have been stumped on how to respond. Website operators aren’t liable for content provided by others, unless the images are child pornography. And anti-harassment and cyberstalking laws don’t apply unless the ex-partner threatens the victim or attempts repeated contact.
Chiarini says she remembers one police officer thumbing through a black book at his desk before finally shrugging his shoulders and telling her no crime had been committed.
Copyright protections, too, wouldn’t help because she wasn’t the one who took the photos. And even if she had, victim advocates say, most revenge sites routinely ignore “take-down” infringement complaints, knowing that the victims can’t go to the expense of pursuing further legal action.
Maryland Delegate Jon Cardin, who is running for the Democratic nomination to become state attorney general, is among the latest of several state legislators to propose a new revenge porn law. His proposal would make it a felony to intentionally distribute sexually explicit digital images of another person without consent.
The bill would exclude images deemed to have “public importance” — an exemption carved out in response to critics who say such laws would criminalize journalists who publish explicit photos. The legislation also wouldn’t hold liable anyone who links to a revenge posting.
Still absent from Cardin’s list of vocal supporters is the ACLU. Its California office worked this fall to dilute similar legislation. That bill, signed last month by Gov. Jerry Brown, makes revenge porn a misdemeanor but contains a big loophole: It applies only to images captured by the partner, exempting self-portraits.
Lee Rowland, an ACLU staff attorney in New York, says self-portraits create a more complex question on the expectation of privacy because the subject shared the image willingly.
“You, I think, could pretty easily understand how a law like that could in five minutes turn an entire class of high school seniors into felons,” said Rowland.
As for Chiarini, she got lucky. Ebay and the video-sharing site that published her photos agreed to take them down immediately. Her son’s school didn’t kick out the family, although it insisted on keeping the disc of nude photos in a file. And Chiarini never lost her job. Chiarini has since been working with Jacobs’ Cyber Civil Rights Initiative, an advocacy group that targets online harassment issues, to raise awareness and help other victims.
“I hit my low, now it’s time to fight back,” said Chiarini. “I don’t want to feel that way ever again.”
