Federal Revenge Porn Legislation Expected To Be Introduced Next Week

Speier’s office told us that she is interested in federal legislation because revenge porn is “not a crime yet, which is the problem.” A lot of people have no recourse if their photos or videos are posted on the Internet, which Speier finds to be an invasion of an individual’s privacy, her office said. Several House members reportedly have expressed interest in co-sponsoring Speier’s revenge porn legislation. Her office was unable to share names of those interested parties with us, nor able to confirm if the legislation has received bipartisan support.

As lawmakers in Washington and across several states propose and pass legislation related to revenge porn, some have begun to wonder if a specific revenge porn law is needed or if company policies allowing victims to request their images be removed are sufficient. Friday, a judge issued a permanent restraint on Arizona’s revenge porn law, after Arizona Attorney General Mark Brnovich, ACLU and supporters of the law agreed that as written the law was too broad (see 1507130042). Maricopa County Attorney Bill Montgomery penned an opinion piece encouraging state lawmakers to remedy the language issues in the legislation when they return in the fall.

A Maricopa County Office of the Attorney General spokesman told us that it's his understanding that the sponsor of Arizona’s revenge porn law plans to introduce an amended version when the legislative session convenes in fall. All indications suggest the legislation will pass, said the spokesman. He said the AG viewed the revenge porn law as a necessary piece of legislation to combat “these types of offenses,” which are increasing. The Internet and social media have opened up an opportunity to exploit and harass people, and there are websites that cater to this content and make it easier to share photos and videos, Cobb said.

Without the state’s revenge porn law, victims don’t have many legal remedies, said the spokesman. Once a photo is posted or distributed online, it lives forever, he said. In some cases, the district attorney can charge an individual who posted a revenge porn photo or video with a different offense like extortion, or a city prosecutor can charge an individual with a misdemeanor harassment charge, but other times there is nothing to be done ,he said. ACLU Speech, Privacy & Technology Project Staff Attorney Lee Rowland wrote a blog post Friday on the restraint on Arizona’s revenge porn law in which she called Google's and reddit’s offers to remove revenge porn a “huge victory,” and said company policies are a way to skirt First Amendment concerns raised by revenge porn legislation.

It’s difficult to draft a law that targets only the bad stuff, said Center for Democracy & Technology Project on Free Expression Legal Fellow Rita Cant. Four major companies -- Facebook, Google, reddit and Twitter -- have said they will respond to requests to remove revenge porn, she said. Microsoft has not made such an announcement yet, but Cant said she believes the company will follow what other big companies have done. Microsoft had no immediate comment. She said she didn’t know if any state revenge porn legislation has been adequate thus far, adding that it’s easier for companies to create a policy than for Congress, due to free speech considerations.

Cyber Civil Rights Initiative Tech Policy Director Mary Anne Franks said it’s “wonderful” that companies like Google and reddit “finally stepped up to remove nonconsensual pornography,” adding, “Google's policy change in particular will make a tremendous difference in victims' lives.” But Franks said victims should not be at the “mercy of for-profit Web companies.” Google’s policy is to remove the content from search results, not the content itself, Franks said. “Sites that traffic in revenge porn will continue to traffic in revenge porn, and offline nonconsensual pornography will not be affected at all.”

Company policies can change, which is why legislation is also needed, Franks said. “It's worth asking whether one of the reasons several companies finally adopted anti-nonconsensual pornography policies is that the practice is increasingly being criminalized,” she said. “Nonconsensual pornography should be considered a crime, not just a disfavored Internet practice.”

Due to variations in companies' revenge porn policies, Cant said it's unlikely that companies would coordinate takedown requests with one another. Facebook doesn’t support any nudity generally, she said. Other platforms are more willing to host constitutionally protected nudity, and may ask more questions of an individual asking an image be removed to ensure the takedown request is valid, Cant said.

Franks said the ACLU seems to care more about protecting corporate profit than the Constitution when it comes to the revenge porn issue, noting that in testimony and in interviews with the media, the ACLU has argued laws that protect sexual privacy should apply only to those who were in intimate relationships with their victims and disclosed the material with the intent to harm. The ACLU had no comment.

EFF Staff Attorney Sophia Cope said that she consistently sees company policies and legislation that are “overbroad and vague” and leave users and targets of revenge porn or harassment unclear as to what constitutes as a violation. “We don't think there's an easy answer, but we do see problematic solutions being proposed,” Cope said. “That being said, it's a good thing that companies are taking seriously revenge porn and harassment more generally,” she said, pointing to “positive developments” like Twitter’s announcement users could implement block lists (see 1506100035).