New Draft Article: “Judicial Resolution of Nonconsensual Pornography Dissemination Cases”

I’ve posted to SSRN a new article titled Judicial Resolution of Nonconsensual Pornography Dissemination Cases. I co-authored it with Angie Jin, a recent Cornell Law alum. The paper is in draft form, and we would gratefully welcome your comments.

The article originated in late 2014, when I noticed a spate of rulings in nonconsensual pornography cases (such as the Sayer and Osinger cases). I planned to blog those cases at Forbes but never got a chance. Meanwhile, additional cases kept pouring in. I noticed that plaintiffs seemed to be winning in court regularly–outcomes which seemingly conflicted with the commonly held view that the legal system fails victims. By the beginning of 2016, I was sitting on more than a dozen cases. Fortunately, around that time, Angie asked if she could guest-blog. After some back-and-forth, I asked if she would work with me to write up the cases. After we kept finding more and more cases, we decided to compile the nonconsensual pornography dissemination cases as comprehensively as we could and turn the project into an article. In the end, we compiled 87 cases–a bigger number than we expected, though we likely captured only a small fraction of the total universe.

Even though it’s not comprehensive, we believe the compilation is helpful. First, we have researched and aggregated a number of cases that have been underreported or never reported at all. Indeed, because of non-standard nomenclature on the topic, I think we’ve found numerous cases that no one had previously spotted as nonconsensual pornography cases. Second, by putting all of the cases together, we can provide some compelling evidence of certain patterns and pathologies to supplement individual anecdotes. Third, the compilation lets us generate some rudimentary statistics, such as charts of longest prison sentences and biggest civil damages awards. Finally, the compilation provides a path to systematically evaluate common stereotypes, such as the empirical basis for the victim advocacy community’s antipathy towards Section 230. (Spoiler: Section 230 casts a very small shadow over the actual cases in the compilation, though it surely deterred others from being brought).

While we have done some pretty extensive research into the topic, we know we are missing cases that fit in the compilation’s scope. That’s where you come in: *please please please* send us leads, tips and references to other cases we should include. And of course, we’d appreciate any other comments you have. We plan to circulate the article for publication in the “August window” (whatever is left of it).

The paper abstract:

Nonconsensual pornography dissemination has emerged as one of the key social issue of the digital age. In response, legislators are rapidly adding new laws to combat it. However, these laws supplement an extensive body of civil and criminal laws that already address many of the same concerns.

To get a better sense of the regulatory scope of the existing laws, we compiled eighty-seven enforcement actions involving nonconsensual pornography disseminations dating back to the 1980s. This compilation provides a useful baseline to critically evaluate any new laws against nonconsensual pornography dissemination.