California’s New Law Shows It’s Not Easy To Regulate Revenge Porn (Forbes Cross-Post)

California enacted a new law against “revenge” porn, sometimes called “involuntary” porn. SB 255, codified as California Penal Code 647(j)(4). The law says it is “disorderly conduct” for a defendant to take intimate and confidential recordings, such as photos or videos, and then distribute them to intentionally cause serious emotional distress to the victim.

shutterstock_137716874.jpgThe final version of the law is significantly less ambitious than earlier drafts, and there’s fairly widespread agreement the law as passed doesn’t do much. It’s easy to see the law’s limited scope by enumerating what it doesn’t cover:

* “selfies.” If the victim makes the recording him/herself, the law doesn’t apply.

* redistributors. The law only applies to the person who makes the recording. Everyone else who might redistribute the recording, including operators of websites that encourage users to post revenge porn, are not covered by the law.

* hackers. If a malicious third party obtains a recording by hacking into the victim’s computer or cellphone and then distributes the recording, the law doesn’t apply.

* confidentiality disputes. The law applies to “circumstances where the parties agree or understand that the image shall remain private.” This might be obvious if the victim never consented to being recorded at all. In other cases, the defendant and victim may disagree about their expectations for the recording, which would make conviction difficult or impossible.

* insufficient intent to cause emotional distress. The law only applies when the defendant intends to cause the victim severe emotional distress. It may be hard for prosecutors to prove the defendant’s intent without an admission from the defendant or a piece of “smoking gun” evidence.

In sum, California’s new revenge porn law only covers one category of involuntary porn. As a result, I would be surprised if we see many prosecutions under the statute.

Nevertheless, other laws already apply to other involuntary porn categories. For example, hacking into someone’s computer or cellphone is already illegal; if the victim made the recording him/herself, copyright law protects it; and if the parties had confidentiality expectations, privacy doctrines may apply. Anti-stalking and anti-harassment laws also can apply to involuntary porn, especially where a defendant distributes recordings to hurt the victim. Indeed, we have so many laws and crimes already on the books, it’s challenging to find any examples of incivil or anti-social behavior that isn’t already illegal under multiple overlapping laws.

This helps explain why it’s hard to develop new laws to combat involuntary porn. California’s new law wasn’t very ambitious, but an ambitious law seeking to criminalize behavior that isn’t already illegal will run into at least two major limits on legislative power.

First, California’s new law probably sidesteps First Amendment problems by requiring an intent to cause serious emotional distress. Without such a restriction, involuntary porn laws can face significant First Amendment limits. Intimate depictions are often part of other people’s life history–a story that person may want to tell in full. Further, by design, privacy laws suppress the flow of truthful information. For example, consider Anthony Weiner’s sexting photos. California’s new law wouldn’t apply to them (they were selfies), but any law restricting a recipient’s redistribution of those images may substantially hinder important social discourses. The recipient could publicly claim that she received sexting photos from a famous politician, but she may need to provide photographic proof to substantiate her claims–especially in the face of the politician’s inevitable denials. Weiner’s sexting photos provide crucial evidence of his dubious decision-making and recidivism, so any law that interfered with their disclosure may violate the First Amendment.

Second, involuntary porn laws would help victims more if they applied to website operators who republish user submissions. However, state legislatures cannot impose such liability due to 47 USC 230, the 1996 federal law that says websites aren’t liable for third party content.

So where will the policy debates over involuntary porn go? Surely California’s small incremental step isn’t the final word on the matter. However, the legal limits that curbed California’s ambition provide helpful insight to other legislators who hope to strike more boldly against involuntary porn.

[Photo credit: Thin slice of Swiss cheese // ShutterStock]