Arizona: How Not To Combat Revenge Porn

Arizona House Bill 2515 seeks to criminalize revenge porn. The only small problem: the proposed statute is blatantly unconstitutional. Here’s the text:

Be it enacted by the Legislature of the State of Arizona:

Section 1.  Title 13, chapter 14, Arizona Revised Statutes, is amended by adding section 13-1425, to read:

13-1425.  Unlawful distribution of images; state of nudity; classification; definition

A.  It is unlawful to knowingly disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording or other reproduction of another person in a state of nudity or engaged in a sexual act without obtaining the written consent of the depicted person.

B.  This section does not apply to any of the following:

1.  Lawful and common practices of law enforcement, reporting criminal activity to law enforcement, or when permitted or required by law or rule in legal proceedings.

2.  Medical treatment.

3.  Images involving voluntary exposure in a public or commercial setting.

C.  A violation of this section is a class 5 felony, except that a violation of this section is a class 4 felony if the depicted person is recognizable.

D.  For the purposes of this section, “state of nudity” has the same meaning prescribed in section 11‑811.

Sigh. This is the trouble with some of the draft legislation floating around out there that gets copied and pasted without the intervention of legal analysis. This bill is plainly unconstitutional – it offers no exception for matters of public concern or newsworthiness. Here’s the hypo that shows why it’s DOA: I have an image of Monica Lewinsky and President Bill Clinton engaged in a sex act. I publish it in the newspaper. Can I be prosecuted? Clearly not – it’s a matter of public concern (the President is having an affair with an intern, a government employee), so the First Amendment blocks the prosecution. And the bill’s failsafe (“permitted by law”) isn’t sufficient; rather, it’s lazy drafting – it puts the onus on courts to clean up the legislature’s mess, and to sort out permitted from proscribed speech. That’s not nearly enough; there is a long line of precedent making clear that the legislature must, for due process reasons, provide far more clear notice of what is banned and not, especially where speech is concerned. (See, for example, Reno v. ACLU.) I lay out the challenges of drafting a criminal law that’ll pass First Amendment muster in this post and in my article Exposed. (Just for one example, the legislature ought to read U.S. v. Stevens.)

Arizona passes a lot of unconstitutional laws these days. Revenge porn is a real problem that needs thoughtful solutions. This isn’t one of them. Arizonans deserve better.

Reifying Racism: Real Property as Information Law

On Friday, Carol Rose and Richard Brooks will co-star at a conference at the University of Arizona James E. Rogers College of Law, titled “Saving the Neighborhood,” after their new book. (You can come! Register here.) Rose and Brooks examine the development of legalized racial segregation in housing, the gradual shift to the use of covenants in real property deeds to effectuate restrictions, and the legal battle that culminated in the Supreme Court’s rejection of such devices in Shelley v. Kraemer. Shelley is a casebook standard for both constitutional law and property courses, entangled as it is in questions of state versus private action, alienability of property, and the rise of the civil rights movement. Rose and Brooks, though, tell a much less well-known story: one of subtle signals, game theory, legal formalism, and norm entrepreneurs. The book is gracefully written and eminently readable. It tells a story that is much more complex than the standard 1L accounts of racial covenants. It intrigued me, and in the next few posts, I’ll expound upon why.

Rose and Brooks argue that the legal enforceability of racial covenants was almost beside the point: court battles were rare, and expensive. Rather, racial covenants served as a substitute and a signal. In looser-knit communities (and in ones with higher socio-economic status), racial covenants took the place of informal social pressures – everything from angry glares to deadly violence – that were the standard mechanism for maintaining racial boundaries in poorer communities or ones with closer ties. Racial covenants carried two simultaneous messages. First, and most obviously, they conveyed to potential homebuyers who were of a racial or ethnic minority (principally African-Americans, but also Asian-American and Latino-American ones as well, depending on the location) that they were quite definitely unwelcome. This indicator had real as well as semiotic effects. It was far more difficult for minority purchasers to obtain a home mortgage when reviewing banks saw the covenants, and the legal proscription could demonstrate a willingness to engage in extra-legal pressures as well. The second signal was to neighbors of the restricted property. It reassured them that collective action to maintain segregation remained strong, preventing the risk of panicked selling or white flight when neighbors feared a sudden shift in the area’s racial composition. This is a sophisticated account of the functioning of fairly arcane legal restrictions. (How many homeowners reading this have checked their deeds for restrictions? Supreme Court Justice William Rehnquist didn’t.)

I have two thoughts about the signaling function of racial covenants. The first is that it suggests some internal discomfort, on the part of at least some white homeowners, about their racial attitudes. Racial covenants strike me as a mechanism for psychological distancing from a slightly distasteful / embarrassing prejudice. (Put another way, I would argue that at least some homeowners preferred more covert “polite racism” to the overt pressures of broken windows and burning crosses.) If this is correct, covenants would have two appealing features. First, unlike “Not For Sale” signs or other constant, more salient signals, racially restrictive covenants were invisible until needed. While real property deeds are nearly always recorded, few people bother to check them until there is a need – buying or selling a parcel of property. Thus, white homeowners did not have to reveal themselves as racist until it was economically or socially important to convey that information. And, covenants allowed a sort of outsourcing of blame: the homeowners could claim that it was not they who were preventing neighborhood integration, but rather the law, via the mechanism of the deed to their property. Some homeowners (like Rehnquist) might plausibly claim not to know of the covenants, or even to disagree with them. But, they could argue that it was no longer up to them – the property carried a legal restriction, and they wanted to follow the law. (Put to one side the fact that, like Rehnquist, they could likely extinguish such covenants with a few hours of a lawyer’s time.) I would argue, then, that racial covenants played an important role for white homeowners aside from the practical one of keeping minorities out of their neighborhood: it allowed them to avoid confronting fully the depth and effects of their prejudice.

Second, this signaling function has important implications for utilitarian versus expressivist theories of law. I have always been an instinctive utilitarian: unenforceable laws strike me as useless. (Years ago, Massachusetts attempted to clear a congeries of outdated, unenforceable laws from the statute books, only to run into stiff opposition from segments of the public who still supported those strictures, even while acknowledging they were no longer binding.) Rose and Brooks’s work, though, convinces me the line between the two theories is not nearly so sharp as I had thought. Even legal devices that cannot be enforced in court can still have social effect. While racially restrictive covenants were rarely enforced in court before Shelley, the shadow of the law may have been important. But even after the Supreme Court’s decision, parties continued to write these covenants into deeds. The expressivist utilitarian view is that these were tales told by an idiot, full of sound and fury (at the Court’s decision), signifying nothing (legally). Rose and Brooks, however, argue that these formally defunct restrictions continued to play a role in setting out social norms – they were greatly weakened signals, but signals nonetheless. It took a flat ban under the Fair Housing Act of 1968 to cut off the informational role of covenants. Even afterwards, recorded deeds still served as musty, but functional, data for buyers about what to expect from their new neighbors.

This is real property as information law – tremendously exciting. More to come.

UPDATE (28 Jan 2014, 8:39PM): sorry, switched “expressivist” and “utilitarian” in the last full paragraph. My fault.

Video: Hacking Revenge Porn

The video from the NYC Legal Hackers event on Revenge Porn is now available. Props to Jonathan Askin, Phil Weiss, David Giller, Warren Allen, Mark Jaffe, Lee Rowland, Ari Waldman, and Jeremy Glickman for a fantastic event. And thanks so much to everyone who braved the (blinding, driving) snow to attend! It was wonderful to catch up with so many friends.

Hacking Revenge Porn

I’ll be back in Brooklyn on Thursday, to take part in a fantastic NYC Legal Hackers session on revenge porn. I’m excited to hear from and learn from Lee Rowland, Mark Jaffe, and Ari Waldman. And, I’m really grateful to Phil Weiss, Jonathan Askin, David Giller, and the brilliant Legal Hackers team for this event. Come hang out in DUMBO and help us think about this problem. (Hint: I think copyright is the solution.)

Shark Tanks and Cybersecurity

It’s the most wonderful time of the year… for data breaches. Target may have compromised as many as 40 million credit and debit cards used by shoppers in their stores. What liability will they face?

At George Mason’s excellent workshop on cybersecurity, there was a spirited debate over the mechanisms of enforcing security standards. (This in large measure derives from Woody Hartzog and Dan Solove’s excellent paper on the FTC’s enforcement work, which they analogize to the development of the common law in tort, among other areas.) Those who criticize the FTC prefer, generally, the use of tort to regulate cybersecurity. And, their critique often accuses the FTC of neglecting to consider the offsetting consumer benefits of failing to invest in cybersecurity (15 USC 45(n)). I think those arguments are profoundly misguided. Here’s why:

Imagine you go to Whole Foods. You’re walking down the aisle with exotic shade-grown turtle-harvested coffee and notice that, in the middle of it, there’s an open pit that is filled with water and man-eating sharks. People are carefully edging around it; a few teeter on the edge, causing the sharks to circle faster, but they recover and make it past. So, as best you can tell, no one has yet been harmed by the shark pit in the middle of the grocery aisle. And, admittedly, kids in the store are fascinated by the sharks, providing them valuable entertainment while their parents overspend. Should Whole Foods be liable for the shark pit?

This is the flaw with tort regulation, and with the balancing test for the FTC’s Section 5 enforcement of cybersecurity. If there’s a data spill, plaintiffs have to wait until something bad happens – until there’s identity theft, or financial fraud, or some other definite harm – to sue. Without that, they lack standing: there’s no concrete harm to redress. And even with that harm, the plaintiffs are going to have a tough time proving causation: did the spill lead to the identity theft? How do they know? More important, how can they demonstrate it sufficient to overcome a motion to dismiss? The dirty secret is that tort doctrine is a dismal failure for redressing cybersecurity breaches. On every element of a claim – duty, breach, harm, causation – a court can (and almost always does) find a failure of proof. Even utter incompetence – not changing default passwords, for example – usually doesn’t lead to liability. Tort simply doesn’t work. Anyone arguing for it seriously is going to have to advocate for doctrinal change, not just using the standard causes of action. Similarly, claims that there isn’t any provable harm from cybersecurity breaches assume two things: one, that hackers are systematically stupid and irrational (apparently they spend time breaking in to corporate databases and then utterly fail to exploit the information they gain), and two, there’s simply no connection between spills of given people’s data and resulting identity theft, fraud, spearphishing, etc. Even if you’re ready to believe six impossible things before breakfast, this is a stretch.

The second part – the tradeoffs – is nearly as ridiculous. Sure, consumers may benefit a bit from companies that don’t employ cybersecurity precautions: perhaps prices are just a bit less. But I’d also benefit in the same way from pharmaceuticals with no clinical trials, or airlines with no NTSB or FAA regulation. That’s an argument against regulation at all, rather than a tradeoff. Given the massive information asymmetries that pervade cybersecurity, the idea of evaluating the benefits of insecurity, on behalf of consumers, is silly. The kids may well enjoy seeing the sharks in the open pit in the middle of the aisle. Perhaps we ought to factor that into the analysis of whether Whole Foods gets to have the James Bond-esque shark trap in the store. But I think that stretches utilitarianism to the point of ridicule. It’s not just that I don’t think having a slightly cheaper ride on The Mangler at the carnival is a poor trade-off, given how hard it is to inspect safety or to hold a judgment-proof vendor accountable. It’s that we don’t want The Mangler to exist in the first place.

There’s a lot of resistance to regulating cybersecurity. The trouble is that these arguments are typically Panglossian: this is the best of all possible worlds, and additional legal strictures would simply make things worse for everyone. The benefit is that these positions are often risible on inspection. Unless, of course, you like the prospect of shark attack during grocery shopping.

Draft Legislation for Protecting Intimate Media

In Exposed, I argue for expanding copyright protection to protect intimate media and to treat unauthorized performance, distribution, or display of such works (as with revenge porn) as infringement. I have drafted model legislation, the SHARE IT Media Act, for the proposal – forcing oneself to put together statutory language for a policy proposal imposes very helpful discipline, and I’ve made some changes to the paper as a result. I would welcome thoughts and feedback on the draft language.

AALS Advice

I’ve just returned from the AALS Faculty Recruitment Conference – universally known as the “meat market” – in Washington, D.C. Arizona is fortunate enough to be hiring this year, and we met some terrific candidates. There’s a wealth of advice out there for entry-level candidates, but I thought I would share three quick things that struck me after two days sitting in a slightly dingy hotel room asking the same questions of person after person:

  1. Remember, always, that it’s a conversation – The goal is to have an engaging give-and-take with your interlocutors. That means being ready to hold up your end of the conversation and, critically, not turning it into a monologue. I was quite surprised by the number of candidates who talked for 8 or 10 or 12 minutes straight, even when the body language of the committee suggested the person needed to bring their bit to a close. Everyone is nervous and wants to make a good impression, but self-awareness is absolutely vital. The committee has a certain set of things they need to get through – your research agenda, extant scholarship, teaching package, etc. – and 25 minutes, tops, to do so. You have to play your part: have a 2-3 minute bit on your research agenda and a 2-minute version of your job talk. Practice them until they’re set pieces. And, if you notice yourself talking for more than a few minutes straight (you absolutely have to pay attention to time here): STOP. Finish your sentence and cease speaking. We all have The Talker on our faculty, and we all (except The Talker) want to avoid hiring a younger version of that person. I can’t overemphasize this point.
  2. Know the flaws of your work – We asked candidates to give us their job talk papers before the meat market, and spent about half the interviews talking about them with candidates. If you’re going on the market, give your draft piece – in whatever stage it’s in – to people in your field who will give you candid criticism. I do mean criticism here: ask them specifically for the flaws or weaknesses in the paper. Listen carefully to their answers. Develop responses. Hopefully you can work these into the piece itself, but if you don’t have time, or if they’re difficult to work around, be ready with verbal responses that acknowledge the point and show how you can handle it thoughtfully. Appointments committees are like velociraptors when it comes to papers: they are built to detect weakness and pounce on it. Whatever the problems in your work, they will find them, expose them, and expect you to respond to them. You must have convincing answers: “I’ll have to think about that and get back to you” is death. I think Arizona’s faculty is unusually good in going straight to the heart of a paper and finding the difficulties with it (or, perhaps, it’s no great feat to find the woes in my work), but I also believe we’re not the only ones who do this. This weekend, I was surprised at the number of people who had not thought much about fairly evident difficulties with their work. Be ruthless in figuring out where your article’s weaknesses are.
  3. It’s not personal – Failing to get a callback feels terrible. It feels like a judgment of  your intellect, work, and even self-worth. It’s often not, though. Maybe the committee couldn’t agree on who to bring back for IP and so they don’t bring anyone. Maybe you’re up against the next Cass Sunstein and Richard Posner, and the school can only offer 2 slots. Maybe the committee decided the need for Torts outweighs the need in your area. Perhaps the university pulled the funding for a line. Or maybe your paper critiques the hiring chair’s former roommate’s brother’s work. So, sometimes it will be that you didn’t have a good interview, or failed to make a good impression. Many times, though, it’s a congeries of other factors that are completely out of your control. I hope that’s some comfort, although I don’t want to downplay the emotional toll of the hiring process.

The meat market is a tough experience. I hope these pointers can help a little bit.

The Data Speaks: A Closer Look at Gun Violence

This Thursday (October 17, 2013), Stanford Law professor John Donohue III will give a public lecture at the University of Arizona James E. Rogers College of Law on “The Data Speaks: A Closer Look at Gun Violence.” Donohue is the leading expert on empirical analysis of gun violence; his talk is the inaugural event for the College of Law’s QuantLaw program (headed by our own Jane Bambauer). You can register for the event on-line, and you can also learn more about QuantLaw. Here’s some additional information about Professor Donohue’s talk:

Stanford Law Professor John Donohue III has conducted large-scale statistical studies of gun violence and the impact of various laws and policies and is frequently sought after for his expertise and analysis of the problem. After the shootings of former Arizona Congresswoman Gabrielle Giffords and 18 others in 2011, he was invited by the New York Times to write an editorial on reducing gun violence.

Registration is required for this event. Visitor parking is available for a fee at several parking garages near campus. A visitor parking map is available here . Professor Donohue’s lecture is the inaugural event of Arizona Law’s QuantLaw Program, offering a variety of classes and opportunities for data-driven research on social, scientific, and legal issues.

Copyright, Sexting, and Revenge Porn: What Law Should Do

California has a new law criminalizing certain forms of revenge porn. I’ve been publicly skeptical about it. What do I propose instead?

As I suggested in an earlier post, I think copyright law offers a powerful mechanism to, simultaneously, foster the production of intimate media by consenting partners and to punish non-consensual distribution and display (such as revenge porn) by treating them as infringement. This post outlines the key elements of my proposal.

I propose an amendment to the Copyright Act that would confer a new right upon the subjects of intimate media. Intimate media are photographs or audiovisual works that meet four criteria:

  1. The media contain images of one or more living humans;
  2. The rightsholder – the future plaintiff – is one of those living humans captured in the media;
  3. The rightsholder can be reasonably identified from the media, or from the combination of the media and the information accompanying it; and
  4. The media contains intimate information, which is defined as sexually explicit conduct involving the plaintiff, or the plaintiff’s genitals, pubic area, or (if female) exposed nipple or areola.

A person identifiably captured in a work of intimate media would enjoy a new right: to prevent distribution and display of that work. This right would apply against both private and public distribution and display. It would be waivable in writing, but not alienable. The new right would have two key limits. First, it would not apply against someone who received the work from a person identifiably captured in it (so long as that person did not further distribute the work, or display it to someone else). And, it would apply only prospectively, to intimate media created after the implementation date of the amendment.

This new copyright entitlement would be infringed whenever someone distributed, or displayed, the work of intimate media in which the plaintiff was identifiably captured. Distribution would include making the image or video available to others, and would not require proof of actual distribution. The new right would apply to two classes of defendants: natural persons, and service providers. Natural persons would infringe via the standard modes of display and distribution. Service providers would infringe via activities such as hosting, linking, and caching.

A plaintiff who sued one of these defendants and won could obtain the usual monetary damages along with injunctive relief. The availability of statutory damages ($750 – 30,000 per work infringed) would enable plaintiffs to recover litigation costs, and would create some deterrence for potential infringers. My proposal would modify the Copyright Act’s registration requirement for statutory damages. At present, the Act requires registering a work within three months of publication to obtain these damages. I would alter it to permit registration of works of intimate media at any time before suit for this purpose.

The proposal includes a safe harbor and two affirmative defenses. The safe harbor would apply to service providers, who would be immune from damages until they received a notice of claimed infringement of the new right from a plaintiff. If the ISP disabled access to or removed the accused infringing work of intimate media within 5 days, they would retain immunity from damages. A notice of claimed infringement would include an allegation of infringement of the plaintiff’s right in a work of intimate media, URLs under the ISP’s control where the work could be located, and contact information for the plaintiff. (I would permit plaintiffs to proceed pseudonymously, coordinated by a federal district court.)

Finally, the new copyright entitlement would provide two defenses to infringement. First, a defendant who obtained written consent from the plaintiff to the distribution or display of the work of intimate media would defeat liability. Second, there would be no liability where the distribution or display was newsworthy. (Fair use would not be a defense to infringement of the new right.)

To summarize: the proposed reform would create a right for identifiable subjects of intimate media to prevent unauthorized distribution or display of those images or videos, backed by statutory damages and injunctive relief, but leavened with immunity for service providers following a take-down procedure and for any defendant obtaining written consent or making newsworthy use of the media.

Let me close with a word about my normative commitments in this project. I intend this proposal seriously, and I believe in its merits. It’s also an exploration of some troublesome zones in copyright. Are the First Amendment’s requirements really met simply by the idea-expression dichotomy and fair use? How closely would a reviewing court scrutinize substitutes for those restraints? Does the constitutional and statutory requirement of authorship have any heft, either conceptually or doctrinally? What quantum of proof must Congress adduce about the effects of a change to the Copyright Act to satisfy the goal of “promot[ing] the progress of science… by securing for limited times to authors… the exclusive right to their respective writings”? I think my proposal passes all of copyright’s tests – constitutionally, conceptually, and practically. I suspect copyright scholars will find that conclusion unappealing. I’m looking forward to hearing why they think I’m wrong.

For more details, see the full draft of the paper, Exposed (98 Minn. L. Rev., forthcoming 2014).

California’s New Revenge Porn Bill: Helpful-ish

The California legislature passed, and Governor Jerry Brown signed, a bill that creates misdemeanor criminal liability for certain types of revenge porn. Here’s the new statutory language, at Ca. Penal Code 647.4(j):

(4) (A) Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.

(B) As used in this paragraph, intimate body part means any portion of the genitals, and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or visible through less than fully opaque clothing.
(C) Nothing in this subdivision precludes punishment under any section of law providing for greater punishment.

The bill is likely to be helpful… sort of. On the plus side, it invokes the understanding of the people involved as a trigger: liability can attach when you distribute the image of someone’s intimate body parts, in situations where the initial recording was understood to be / remain private. It covers any form of recording, so both video and still images are considered. And, it attaches to a type of revenge porn where, under current law, the person who takes the photo or records the video holds copyright, depriving the subject of the recording of the power to launch takedown notifications under Section 512 of the Copyright Act.

But, there are some significant shortcomings. First, and most important, this is state criminal law. That means prosecutors can go after the initial perpetrator (typically, an ex-partner of the victim), but they’re powerless to enforce anything against Web sites or other Internet intermediaries that host the images / videos, due to the immunity provided by 47 U.S.C. 230. Second, the bill does not cover instances where the victim takes the initial photo under this shared understanding of confidentiality, and then the recipient distributes it. In short, selfies aren’t covered. Third, the intent and harm requirements seem to unnecessarily narrow the ambit of the law. Proving intent is always tricky. A defendant might argue that their intent was not to cause serious emotional distress, but rather to brag about the attractiveness of their partner. And the harm aspect means that until the victim learns of the distribution, and suffers serious emotional distress, there is no possible criminal liability under the bill. So, if someone sends around a nude photo of me, and it affects my employment opportunities, keeps me from dating people I find interesting, and causes me to be subject to harassment, there’s no liability – until I suffer emotional, as opposed to financial / reputational, harm. It’s a strange triggering provision.

As I posted recently, I continue to prefer a copyright-based approach to ones sounding in criminal or privacy law. More on this soon.