The New York Times has an interesting article on attempts to use law to combat revenge porn. It quotes a series of experts, including Danielle Citron, Mary Anne Franks, Eric Goldman, Eugene Volokh, Charlotte Laws, and Marc Randazza. (Danielle has an excellent new book out on the topic, which I recommend. Disclosure: she kindly asked me for feedback on drafts.) So far, there have been a variety of tactics employed: tort law, state criminal law, breach of confidence claims, and proposals for a federal criminal law. Barriers range from the immunity for intermediaries from Section 230 of the Communications Decency Act to law enforcement indifference. I favor trying different moves until we find one that works with minimal countervailing costs. But, both the NYT and legal scholars overlook a mechanism that I find to be the most promising: intellectual property law. Today, I’m going to explain why I think using copyright, in particular, to deal with this problem is the most sensible approach. In the next post, I’ll outline the substance of my proposal.
Concentrating on revenge porn sets the focus too narrowly. Revenge porn is parasitic upon a larger trend that is socially valuable and desirable: the creation and sharing of intimate media – nude or sexually explicit photos or videos – among consenting partners. Intimate media can bring people together – it allows them to express romantic and sexual feelings in new ways. People take revealing photos of themselves with smartphones and share them with a spouse. They engage in steamy Skypeing. They record themselves in intimate activity and watch the videos later. Partners in long-distance relationships can use intimate media to overcome limitations of space and distance. For people with minority sexual preferences, creating intimate media can help them challenge prevailing gender norms, empower them to engage with others while protected by greater anonymity and psychological distance, and permit them greater control over self-representation. This type of sharing is increasingly lauded by mainstream media, relationship counselors, and that reliable bellwether of safely provocative tastes, Cosmopolitan magazine. Put simply, the consensual use of intimate media is merely a technological update to long-established romantic practices, from love letters to racy poems to phone sex. Thus, we should structure legal regulation to both encourage production of intimate media, by consenting partners, and to discourage abuse of those photos and videos.
Production of intimate media, though, is threatened by revenge porn, among other abuses. Partners who are considering sending a racy photo to a loved one may hesitate, or abstain, based on fears it will spread beyond the intended audience (usually, an audience of one). And they’re right to worry: non-consensual distribution and display of this content is regrettably common. Researcher Holly Jacobs found that 22% of heterosexual respondents to her survey, and 23% of LGBT ones, had experienced someone sharing intimate media without their consent. Revenge porn causes tangible injuries: recruiters reject job candidates for inappropriate photos on the ‘Net, or on social media. Anecdotal evidence abounds: the “drunken pirate” teacher denied an education degree, or the high school English teacher forced to resign for modeling swimsuits online – even under an assumed name. And revenge porn causes less tangible injuries: it deprives subjects of the power to decide with whom they share sensitive, even secret aspects of themselves. The problem is also, presently, a gendered one – women appear to be disproportionately targeted, perhaps reinforcing social norms about sexual activity (a man who is sexually active is a playboy, a woman who is so is a whore). Revenge porn not only harms those people captured in the images or videos, it also deters others who would find benefit in sharing intimate media with a partner. Thus, I view the social disutility of revenge porn even more broadly than most scholars do.
What we need is a regime that regulates this type of material to encourage the creation of consensual intimate media, and to discourage non-consensual distribution and display (such as revenge porn). That sounds exactly like what copyright law does: it establishes legal rules that lead people to generate content by punishing forms of unauthorized sharing and use. Intimate media are one example of amateur, non-commercial production of expressive content. And, they are a fragile example: the risk that an intimate photo or video will spread beyond its intended audience deters at least some people from creating this material. Using copyright as a mechanism is appealing – it simultaneously punishes unauthorized sharing or display as infringement, with the usual panoply of remedies available, and it encourages production of intimate media by assuring creators that the law will enforce their choice of audience.
This argument tends to draw objections both from copyright scholars and from privacy scholars. Copyright experts sound complaints in at least two forms. First, using copyright law in this fashion is an undesirable deviation from the proper goals or contours of the doctrine. Second, other mechanisms, such as privacy law or criminal law, are better suited to this purpose. Privacy scholars typically sign on to the second objection, and also prefer to deploy legal regimes that they view as having greater expressive power regarding the problem of revenge porn.
I’ll take up the first objection in my next post, but want to note briefly that, if one argues my proposal departs from the true path of copyright, one bears the onus of establishing what that path is and where it leads. As for expressivism, I think criminal sanctions likely do carry greater moral disapprobation than copyright ones. However, as I explain below, I think copyright offers greater enforcement and, concomitantly, greater deterrence for potential violators and greater relief to victims. I’m willing to trade inchoate condemnation for concrete relief.
Privacy law is the most intuitive answer to the problems intimate media face. The content is intended for a limited audience that is usually connected closely to the creators or people featured in it, and so unauthorized distribution feels like a privacy violation. But, I think a privacy approach has three potential shortcomings. First, privacy law does not yet take seriously the promise and potential of intimate media. Rather, it focuses exclusively on the harms that flow from unauthorized sharing. Copyright, by contrast, embraces intimate media – it creates a generative legal regime for consensual content, and reduces harm by treating it as infringement. Second, under Section 230 of the Communications Decency Act, privacy laws (with the important exception of federal criminal statutes) do not apply to intermediaries such as Web sites. Thus, they fail to address the key harm that unauthorized distribution and display creates: the ongoing availability of material even after the initial disseminator has been punished. While privacy scholars often advocate repeal or alteration of Section 230, their proposals have proved politically non-viable to date, and they would likely exact significant, undesirable costs on intermediaries, who would have to engage in proactive monitoring of their sites or services. Lastly, even if Section 230 were modified, First Amendment objections from intermediaries might well block privacy enforcement against them. Copyright works in alignment with Section 230, and has built-in accommodations for First Amendment interests.
Similarly, criminal law appears attractive at first blush: it leverages the investigative powers of the state, bypasses 230’s immunity, and brings societal stigma to bear upon offenders. However, I think criminal law has three important drawbacks relative to copyright. First, enforcement levels are likely to be lower. Prosecutors – especially federal ones – face significant resource constraints. Revenge porn cases would compete with ones focused on terrorism, narcotics, white collar crime, immigration violations, and so forth. A useful parallel is criminal enforcement of IP laws. In 2008, Congress passed the PRO IP Act, which devoted additional resources to IP prosecutions, and the Obama administration has made criminal enforcement a relative priority. Yet prosecution is still rare: each year since 2008, the Department of Justice has brought fewer than 200 cases per annum, charging fewer than 300 defendants. Contrast that to the scale of private enforcement by the RIAA and MPAA alone. Second, the current problem with prosecution of revenge porn appears to be a lack of interest from law enforcement, not a dearth of legal tools. Danielle Citron’s new book documents quite extensively the reluctance of police to investigate, and prosecutors to charge, such cases. Indeed, the prosecution of Holly Jacobs’s former boyfriend drew significant media attention precisely because of its rarity. New laws will not in themselves drive more cases. Distributed, private enforcement under copyright is likely to be far more effective. And, finally, here too First Amendment scrutiny is a significant hurdle. Under Chief Justice John Roberts, the Supreme Court has been increasingly skeptical of laws that criminalize the sharing of information, from prescription data to animal crush videos to protests at funerals to violent video games to lies about one’s military service. Any criminal law will have to be crafted and drafted with particular care to survive review. Copyright, by contrast, has well-established First Amendment safeguards that receive considerable judicial deference.
To summarize: revenge porn is parasitic upon the socially valuable trend of consenting partners creating, and sharing with one another, intimate media. Copyright law holds the most promise to encourage consensual use while punishing unauthorized sharing and display. In the next post, I’ll lay out my proposal, and address a few potential objections to it.
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