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February 09, 2013
What Should We Do About Revenge Porn Sites Like Texxxan? (Forbes Cross-Post)
Periodically, a new controversy springs up about a website that encourages users to post anti-social or distasteful content. A few years ago it was sites like JuicyCampus or People's Dirt that requested users to gossip about each other; followed by IsAnyoneUp? that linked user-submitted pornographic photos to the subject's Facebook page. The latest website to stir up a media frenzy is Texxxan.com, which encourages users to post "revenge porn," i.e., pornographic depictions of former lovers, ostensibly to get revenge on them.
The Texxxan Lawsuit Will Fail
Texas lawyers recently filed a class action lawsuit against Texxxan.com, its web host GoDaddy ($DADY), its uploaders and its subscribers. No matter how much the lawyers hype their lawsuit in the media, it's mostly dead on arrival. All of the defendants--other than the users actually submitting the revenge porn--are protected by 47 USC 230, the law that says websites aren't liable for third party content. Section 230 also explicitly protects website users, so the claims against the website subscribers are specious. In fact, Texas recently enacted a broad anti-SLAPP law designed to discourage anti-free speech lawsuits. If the courts determine that the revenge porn relates to a "matter of public concern" (not likely, but it is possible), the plaintiffs' lawyers will be writing checks to the improperly targeted defendants.
It's more complicated assessing the liability of the users who post revenge porn. We need to know more about how the defendants got the revenge porn and under what terms or understandings. (Obviously, that could lead to some salacious pillow-talk appearing in court records). Because the court will have to evaluate each submitted item's history on a one-by-one basis, the effort to organize a class action should fail for procedural problems (irrespective of its substantive merit or lack thereof).
Because the existing class action lawsuit is so weak, the Texxxan plaintiffs' best legal chance is to bring individual lawsuits against the defendants who did them wrong. Normally, when dealing with distasteful online content, plaintiffs have difficulty identifying the otherwise-anonymous defendants--a problem that encourages the plaintiffs to pursue easier-to-find defendants, like web hosts. In contrast, in this particular case, revenge porn plaintiffs often can find the defendants, because (we hope...) there's a limited number of people who have nude depictions of the plaintiff.
We Don't Need to Change the Law
Still, our current legal system isn't well-designed to redress user-submitted online pornography. And as a practical matter, even if the law were more effective, there will always be uncomfortably anti-social behavior online. So, what should we do differently?
Every time a distasteful content website flares up in the media, the pro-regulation crowd agitates for amendments to 47 USC 230. Personally, I find it hard to justify the non-consensual publication of pornography, but I am skeptical that 47 USC 230 needs fixing. First, we are already seeing troubling efforts to exploit the existing exceptions to Section 230, such as trademark lawsuits against consumer review websites and plaintiffs abusing copyright to create a "right to forget." Adding another exception will just create more possibilities for mischief. Second, all content regulation schemes are necessarily over- and under-inclusive. It's not surprising that Section 230 may leave some activity unaddressed; any other regulatory policy also would be imperfect. Third, while I have no love for distasteful content websites, I don't trust my powers to decide what's too distasteful or isn't--and I trust any regulators' ability to evaluate content even less.
Perhaps most importantly, distasteful content websites routinely fail on their own accord, often quite quickly. JuicyCampus? Gone. People's Dirt? Gone. IsAnyoneUp? Gone (but coming back?). Even Texxxan already put its content behind a paywall, rendering the content largely invisible. My guess it that Texxxan.com is already on an irreversible path towards a complete winddown. These shutdowns aren't an accident. Inevitably, the website operators face enormous pressure from the media coverage, the public's opprobrium, the threats of vendors (especially payment service providers or ad networks) to cut off or reduce service, and yes, even the legal risks. As a result, distasteful content websites have comparatively short shelf lives. As attributed to Lao Tzu (and repeated in the movie Blade Runner), "the flame that burns twice as bright, burns half as long." If the marketplace is going to drum these websites out of business organically, without any new laws, perhaps the existing regulatory policy is working OK.
Furthermore, many distasteful content websites exist principally because of Google ($GOOG) indexing. As Google evolves its algorithm, I hope it will eventually reduce the visibility of these low-value websites--which in turn will reduce the websites' financial potential. The ordinary evolution of Google's algorithm is far more likely to suppress distasteful content website entrepreneurship than any new law would.
The Future of Revenge Porn
Let's face it: between sexting and sex tapes, far more private pornography is being generated than at any point in human history. Whereas having nude/sexual depictions of a person used to be a rarity, for future generations (and perhaps current ones) such depictions are going to be normal--perhaps even ubiquitous.
When we reach that point, there will be substantially less "scandal" or taint associated with the unauthorized posting of nude/sexual depictions. After all, many other folks will have made similar depictions. The public dissemination of such depictions might still violate the privacy expectations of the depicted individuals, but it will not be seen as unusual.
This points the way to the long-term "solution" to the revenge porn "problem": we as a society will necessarily have to adjust our social norms about the dissemination of nude or sexual depictions to reflect their ubiquity. In fact, we're likely to develop a type of "blindness" to such content, just like today it's bad etiquette to check out a colleague's house value on Zillow ($Z)--or, at least, we don't discuss the prices publicly, even if we've checked them out. If we can wait until our social mores about online nude/sexual depictions adjust, we won't need any new laws to facilitate that adjustment.
Still, for individuals who would prefer not to be a revenge porn victim or otherwise have intimate depictions of themselves publicly disclosed, the advice will be simple: don't take nude photos or videos. Even if you never share them with anyone, these depictions seem to have a surprising capacity to leak out (for example, there are numerous stories of IT technicians or criminal hackers obtaining photos and videos). If you decide to take nude photos or videos, never share them with anyone else. Effectively, when you do, you are gambling that person will not betray your trust for the rest of their lives. The reality is that most people aren't that trustworthy; or even if they are, it's hard to know that in advance.
UPDATE: Prof. Mary Anne Franks (University of Miami) offers numerous criticisms of this post, including explaining why “Prof. Goldman’s piece, and revenge porn defenses generally, goes beyond garden-variety victim-blaming.”
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