California’s Toothless New ‘Revenge Porn’ Law Leaves Selfies Out Of The Mix

A new California law is meant to crack down on revenge porn, but not everyone thinks it has teeth.

Senate Bill No. 255, signed on Tuesday by Gov. Jerry Brown, makes it illegal to take nude photos of someone and repost them on the Internet without that person’s consent. However, as well-intentioned as the law might be, critics say there is a major snag. The statute applies only to photos taken by the perpetrator; it says nothing about photos taken by the victim.

“Put colloquially, ‘selfies’ fall outside the scope of the bill,” said Derek E. Bambauer, a professor at the University of Arizona’s James E. Rogers College of Law. “It does not help in situations where the victim takes the photo of him or herself, shares it with the antagonist, and the antagonist redistributes it.”

It’s a curious omission, seeing how so much of what we would consider “revenge porn” begins with seemingly innocent sext messages sent between lovers. Following a breakup, those messages can end up on websites like the now-defunct IsAnyoneUp.com, where jilted ex-lovers post sexually explicit photos and videos of their exes, sometimes with identifying information. It’s a disturbing and increasingly common trend, one that has spurred movements such as the Cyber Civil Rights Initiative, whose founder, Holly Jacobs, says she was a victim of revenge porn at the hands of her ex-boyfriend in 2009. But sans a selfie clause, it’s difficult to see how much California’s new law will do much to curb the practice.

Earlier drafts of the bill were far broader in scope. They made it illegal to “distribute, publish, email, hyperlink or make available for downloading nude images of the other person along with personal identifying information.” But major sections of the bill were eliminated during a lengthy revision process that lasted from February through September, and included input from the California chapter of the ACLU. The laborious effort speaks to the challenges -- and limitations -- of crafting laws aimed at crime on the Internet, where civil rights and free expression butt heads more often than not.

“Defining ‘revenge porn’ in legislation that is both helpful to victims and Constitutional is a significant drafting challenge,” said Eric Goldman, a professor of Santa Clara University School of Law, who believes the final draft of the law is narrow. “I wonder how often this particular crime will be prosecuted, and how often those prosecutions will occur in situations where victims lacked remedies under existing crimes and torts.”

Bambauer added that, while the California law is aimed at people who post revenge porn, it does nothing to address the larger problem of websites that host it. Such an attempt would likely never get around Section 230 of the federal Communications Decency Act. The landmark 1996 legislation protects websites from being held liable for user-generated content, which makes a lasting respite from revenge porn exceedingly difficult for victims.

“For victims, the real problem is the persistence of this material,” Bambauer said. “Holly Jacobs, for example, described working nonstop for weeks to get photos taken down -- only to have them reappear on other sites and on BitTorrent. The initial betrayal of revenge porn is terrible: trust perverted. But the ongoing harm is the fear that friends, employers and even strangers will suddenly come upon those photos or videos.”

Bambauer believes the solution lay in changes to copyright law, not in amendments to penal codes, as California has done. He has been writing about the topic on Harvard University’s Info/Law blog, where writes that copyright law holds the most promise to encourage the consensual sharing of intimate material.

“The California bill goes after the initial perpetrator, and that’s helpful, but it doesn’t solve the ongoing distribution problem,” Bambauer said. “That’s why I like my copyright-based proposal, although I’m hardly optimistic Congress is going to adopt it.”

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