The fall began with a wave of hacked nude celebrity photos (as Tim notes in his great post). The release generated attention to the larger problem of revenge porn – or, more broadly, the non-consensual sharing of intimate media. Legislators and scholars have moved to tackle the problem. Danielle Citron proposes a model statute for criminalizing revenge porn in a Slate article (excerpted from her new book), and California finally got around to dealing with the random selfie-only coverage of its law.
I’ve written an article that proposes using copyright law to address non-consensual sharing (but see Rebecca Tushnet’s critique). It’s worth noting that Reddit took down the illicit celebrity images after receiving a copyright claim – which sites have to respect, on pain of getting sued into oblivion (since Section 230‘s immunity doesn’t apply to IP claims). Apparently others have the same idea – one attorney is threatening Google with a $100M lawsuit for failure, in his view, to comply with the DMCA’s takedown requirements. (The letter bloviates and any suit has as much chance of winning as this plaintiff did.) The revenge porn contretemps raises at least four issues:
1. Everyone does it – The sharing of intimate media (videos and images of people nude or engaged in sexual activity) is ubiquitous. Jennifer Lawrence, Kate Upton, Kirsten Dunst – somehow, it took leaks of celebrity intimate media to drive home this point. This has two helpful consequences (one hopes). First, “just say no” should go the way of Nancy Reagan’s campaign, since it had about the same efficacy. Partners sharing intimate media is the new normal, and it’s foolish to pretend otherwise. Second, the moral critique attached to the practice should fade. One common response to revenge porn is “He/she took the risk, so too bad.” That approach focuses culpability on the victim, not the offender. The risk is not in using intimate media – it’s in trusting the wrong person. Most of us have done that at some point.
2. Stupid is as stupid does – Regulating revenge porn properly matters. Here in Arizona, it’s only a matter of time before the state’s terribly-drafted revenge porn bill is enjoined by a federal judge. (The ACLU is suing to block the bill, along with a coalition of bookstores, journalists, and others.) I, along with many others, pointed out that the bill was fatally flawed the moment it passed. This means that victims in Arizona are going to be without protection because their legislators failed them – and that all of us Arizonans are going to fund the state’s defense of a statute that is without hope. The Arizona legislature could have gotten it right – my understanding is that they consulted law professor and revenge porn expert Mary Anne Franks during the drafting – but they whiffed: the drafters apparently ignored Prof. Franks’s good advice. (It’s not as though she drafted a model statute they could have used.) So too with Texas, where the legislature messed up a statute that is arguably underinclusive. So too California, although the Golden State just fixed its law. The lesson is simple: legislators should take their time, get diverse input, and ask the experts.
3. Changing norms – One interesting and hopeful development with the celebrity revenge porn hack is a new wave of calls for people not to look at the pictures. Those calls aren’t likely to be highly effective; there are plenty of people all too eager to see Jennifer Lawrence nude. But this could herald a shift towards disapprobation not only to leaking intimate media, but to viewing it if it’s shared without consent. Norms are powerful regulators, and this change would mark a useful riposte to the gleeful distribution of revenge porn.
4. Everyone needs cybersecurity – It appears that the celebrity photos were obtained through a combination of guessing security questions on Apple’s iCloud service and, perhaps, social engineering. Early reports also suggested that attackers may have simply used dictionary attacks to guess passwords on iCloud. The truth is probably a mix. But it means we all must start to care about cybersecurity. We all have something to hide: credit card numbers, trade secrets, job applications, nude selfies – the list goes on. We carry that information on an ever-increasing array of devices and Internet services. That means we have to invest some time and effort to do things like check privacy and security policies, figure out whether your smartphone encrypts its data, and use good passwords for things you care about. Cybersecurity: it’s not just for geeks anymore.
This isn’t the last we’ll hear of this topic, unfortunately. But perhaps the discourse is shifting in a useful direction…
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