by Taylor Linkous, Associate Staff

Technology and pornography–one of the great love stories of our time. That’s right; technology and porn have always had an exciting, juicy, and mutually beneficial relationship.  Where technology goes, porn follows.  Take the Polaroid camera. Much of the success of the Polaroid camera is said to come from the fact that people could take explicit photos without having to go to the store to get the film developed.[1]  Now, cell phones and more specifically, camera phones have seemed to give people this same sense of privacy and promiscuity.  However, this is a false sense of privacy considering we now have the internet, an amazing, yet very scary place where your boyfriend, girlfriend, or whoever else comes across these explicit photos can post them for the world to see.  This is called revenge porn.

 Revenge porn is a nude picture or video that is publicly shared on the internet, usually by an ex-lover, for the purpose of humiliation.[2] This happened to Holly Jacobs, a Florida woman who is now a strong advocate of strengthening laws against revenge porn and who founded the website End Revenge Porn.[3] Jacobs found out from a friend that nude photos she had sent to her ex-boyfriend had been posted on her Facebook and then later to hundreds of revenge porn websites. Even more disturbing was that her name, email address, and place of business were posted along with the pictures.[4] As if finding out your body was exposed to the entire internet world was not enough, she went to the police only to discover they could do nothing for her. 

Currently, the act of posting revenge porn is a crime in only two states, New Jersey and just recently, California.  New Jersey’s Title 2C: 14-9 is an invasion of privacy law which is directed at people who secretly photograph or videotape another person while they are naked or engaged in sexual activity without their consent.[5]  Although the law was not drafted with the criminalization of revenge porn in mind, it was written broad enough to apply to revenge porn situations. 

About a month ago, the California legislature passed SB 255, a revenge porn bill introduced by Senator Cannella.  Governor Jerry Brown signed the bill into law on October 1st and it went into effect immediately.[6]  The law makes posting revenge porn a misdemeanor punishable by up to 6 months in jail and a $1,000 fine.[7]

Revenge porn has become a hot topic in recent months as a couple of other states have attempted to draft legislation specifically directed at criminalizing revenge porn.  This past year, Florida, the home state of Holly Jacobs, tried and failed to pass a revenge porn law.[8]  Also, just recently, New York Senator Joseph Griffo and Assemblyman Edward Braunstein announced they would introduce a bill criminalizing revenge porn.[9] The Wisconsin legislature is also considering a revenge porn bill.[10]

Many have voiced concerns about enacting laws that ban revenge porn. First, the failure of the Florida bill was partly due to concerns that such a law would abridge free speech in violation of the First Amendment.[11]  Similar concerns have been expressed regarding California’s newly enacted revenge porn law.  The ACLU initially opposed the bill because of First Amendment concerns, but has since changed this position and stated there are no objections to the bill.[12]  While most would agree that revenge porn is repulsive and wrong, it may be difficult to strike the right balance with a law that successfully bans the posting of revenge porn without simultaneously restricting legitimate free speech. 

Next, many people don’t see a point in criminalizing this activity as victims are already able to file civil suits against the person who posted the pictures.  However, filing a civil suit takes lots of time and money.  Moreover, the reality is that once these pictures are posted to a revenge porn website, they will spread like wildfire all over internet and are next to impossible to take down.  A civil suit won’t really remedy this issue.  Threatening criminal penalties for posting revenge porn may be a better way to deal with the problem as it will discourage people from posting the pictures in the first place.

On the flipside, there are also concerns that revenge porn laws could be written too narrow.  For example, as written, California’s new law makes revenge porn illegal only if the photo was taken by the same person who distributes it and that person must have distributed the picture with the intent to cause serious emotional distress.[13]  This means that if a girl takes the naked picture of herself and sends it to her boyfriend and then her boyfriend later posts the picture on a revenge porn website, the California law would not apply.  Moreover, showing that a person posted revenge porn with the intent to cause serious emotional distress may be difficult to prove.  People may post these pictures intending to make money rather than with an intent to cause emotional distress.  

There are still many questions to be answered about criminalizing revenge porn.  While state laws criminalizing revenge porn are a start, it may be necessary for federal law to address the issue.  It will be interesting to see how many states follow California’s lead and whether Congress decides to step in. 

Finally, in case you’re interested, a revenge porn case popped up in local news in the last month as the Albemarle County Commonwealth’s Attorney, Denise Lunsford, filed for a protective order in Missouri against her former lover, David Cosgrove, former chief legal counsel to Governor Bob Holden, for posting nude pictures of her on the Internet.[14]  Cosgrove has asked the judge to dismiss the request and sanction Lunsford for “filing an unnecessary legal complaint.”[15]

           

[7] Id.

[10] Id.

[15] Id.