[sudo-discuss] Revenge Porn
GtwoG PublicOhOne
g2g-public01 at att.net
Sat Oct 12 20:45:10 PDT 2013
The Times weighing in puts it on the national agenda, and within range
for someone in Congress to propose federal legislation.
Between now and then, what do y'all think of this:
A downloadable contract, written in language that was valid in all 50
states, that people could print and sign, to enforce two-party consent
for both recording and publication, and assign ferocious civil liability
to violators.
The idea being that refusal to sign would become equivalent to refusal
to use condoms: a red-flag about the relationship. "No condom, no
contract, no sex, full stop."
An abused partner with contract in hand, could get posted material taken
down and could sue their abuser for damages. The contract language
would make the outcome a foregone conclusion, giving attorneys an
incentive to take these cases on a contingent fee basis.
It seems to me (as a layperson) that this could be based on two-party
assignment of copyright, requiring both-party consent to publication or
"public performance" (the latter defined as showing the material to any
third party). Additional provisions would include a requirement for
both-party consent for any photography, audio, or video recording, to
deal with lack of clarity in some states' consent-to-record laws.
This wouldn't protect someone (e.g. Anthony Weiner) who sent unsolicited
naughty selfies to people with whom they had not signed the contract,
but it would protect people who signed and then consensually sent
selfies to each other.
-G.
-----
On 13-10-12-Sat 7:25 PM, Eddan Katz wrote:
> NY Times Editorial on Revenge Porn
> http://www.nytimes.com/2013/10/13/opinion/sunday/fighting-back-against-revenge-porn.html
>
>
> Fighting Back Against Revenge Porn
>
>
> By THE EDITORIAL BOARD
> <http://www.nytimes.com/interactive/opinion/editorialboard.html>
>
> Revenge porn is one of those things that sounds as if it must be
> illegal but actually isn’t. It’s the term of art for publishing sexual
> photos of someone without his or her — usually her — permission, often
> after a breakup.
>
> Consider Holly Jacobs, founder of the Cyber Civil Rights Initiative
> <http://www.cybercivilrights.org/>, who exchanged intimate pictures
> with a boyfriend while in graduate school. When the relationship ended
> he started posting them online. She sought help from law enforcement,
> but the police said she didn’t have a case because she was over 18
> when the pictures were taken, and they were her ex-boyfriend’s property.
>
> So far only two states have restricted this humiliating,
> reputation-killing practice. In 2004, New Jersey adopted an
> invasion-of-privacy law
> <http://law.onecle.com/new-jersey/2c-the-new-jersey-code-of-criminal-justice/14-9.html>
> aimed at voyeurs, which also prohibits the dissemination of sexual
> recordings or pictures without consent. This month, California Gov.
> Jerry Brown signed a bill
> <http://www.cnn.com/2013/10/03/tech/web/revenge-porn-law-california/>
> making revenge porn a misdemeanor punishable with up to six months in
> jail and a $1,000 fine. But it contains a large loophole: it applies
> only if the individual who distributed the pictures was also the
> photographer.
>
> California’s law does not cover situations where someone took a
> self-portrait and shared it with a partner, who then uploaded it to
> the Internet. The Cyber Civil Rights Initiative has estimated that 80
> percent of revenge-porn images were recorded by the victim.
>
> California’s law, though inadequate, has at least brought attention to
> the problem, and other states are considering action. New York
> Assemblyman Edward Braunstein, a Democrat, and State Senator Joseph
> Griffo, a Republican, recently announced revenge porn legislation
> <http://madisoncountycourier.com/?p=50522> that would make
> non-consensual disclosure of sexually explicit images a Class A
> misdemeanor. It would include pictures taken by victims.
>
> Neither current nor proposed state laws are likely to have an effect
> on the Web sites that make the explicit images available to the
> prurient public, because they can claim protection
> <http://www.nbcnews.com/technology/revenge-porn-law-passes-doesnt-cover-photos-shared-victims-8C11319980>
> under the Communications Decency Act. Section 230 of that statute has
> been interpreted by courts to shield sites that host third-party
> content from liability, unless that content, like child pornography,
> violates federal law. (Or unless sites cross the line from aggregators
> to co-creators of the material in question.)
>
> It is not clear how many people have been affected by revenge porn —
> activists rely on self-reporting — but Ms. Jacobs has said that over
> 1,000 victims have reached out to her since she started speaking out
> on this issue. And a tour through a site like Private Voyeur reveals a
> depressingly large cache of photographs.
>
> Going through a breakup is bad enough; going through a breakup and
> finding out that your ex is a horrible person is worse. Although
> lawmakers can’t do much to help their constituents with these
> difficulties, they can work to provide recourse for when exes seek
> revenge through un-consensual pornography.
>
>
>
>
> On Oct 9, 2013, at 7:18 PM, GtwoG PublicOhOne <g2g-public01 at att.net
> <mailto:g2g-public01 at att.net>> wrote:
>
>>
>> Yo's-
>>
>> Re. Eddan's & Sonja's question, "what currently legal behavior does
>> this prohibit?"
>>
>> At present it's entirely legal to consensually record oneself &
>> partner having sex, and then non-consensually publish the recording
>> on a site where the associated verbiage has the direct effect of
>> exposing the victim to emotional abuse from members of the general
>> public. This is what the statute seeks to prohibit.
>>
>> The statute Eddan quoted below isn't the revenge porn (RP) statute,
>> it's a different one that refers to recording people without/against
>> their consent in times/places where by definition there is a
>> reasonable expectation of privacy (bedrooms, bathrooms, and the like).
>>
>> In the 1980s, stalking was also a new area of the law, and liberty
>> issues were raised about anti-stalking laws. Prior to that time, all
>> a victim could do was get a restraining order or try to have a
>> stalker charged with trespassing. Over the past 30 years those
>> issues have been settled with no adverse effect on liberty.
>>
>> Just to be clear what we're dealing with, here are a couple of
>> articles about Hunter Moore, whose RP site made news (beware, reading
>> this stuff may make you want to vomit):
>>
>> http://www.bbc.co.uk/news/technology-17784232
>>
>> http://www.wired.co.uk/news/archive/2013-02/05/revenge-porn
>>
>> Forbes raises the Anthony Weiner issue but that's clearly irrelevant:
>> the California law excludes "selfies" or photos one takes of
>> oneself. Weiner's photos were selfies, thus excluded from
>> protection. Case closed, no hypothetical here.
>>
>> The main problem I have with the statute as written, is "intent."
>> Proving intent can be notoriously difficult. What I would prefer is
>> to prohibit the act itself of publishing, without consent to publish,
>> any recording made in a place/time where there is a reasonable
>> expectation of privacy. Not just bedrooms and bathrooms, but any
>> area of a private residence or private vehicle. If you have a
>> vulnerable conversation with someone in their living room or in their
>> car or on a tandem bicycle, the fact that it was not a bedroom and
>> you were not naked, should not abrogate your expectation of privacy.
>> (I'll happily debate this issue in a separate thread.)
>>
>> In fact the two-party recording notification laws in many states
>> already cover this aspect, though they are not sufficient by
>> themselves to stop RP. Consent to record, by itself (such as where
>> someone consents to their partner recording them having sex), does
>> not also constitute consent to publish. These are two different
>> things, that need to be addressed separately.
>>
>> Press articles on the RP statute refer to opposition by the ACLU. I
>> searched on Ixquick and DuckDuckGo (privacy-protected search engines
>> that don't search you in return) and found nothing; I searched
>> ACLU.org <http://ACLU.org> and found nothing. So if anyone can find
>> an ACLU statement on this, please post a link.
>>
>> Re. "speech" claims in regard to RP: The attribution of
>> person-rights to "speech" is analogous to the attribution of
>> person-rights to corporations, and muddies the issue. A corporation
>> is not a natural person, it's a legal entity formed to conduct
>> business. "Speech" is not a person, it's an act performed by
>> persons, or the product of such an act. Words, images, and so on, do
>> not spontaneously come into existence: they are created by persons.
>>
>> "Freedom of speech" is the unalienable right of persons to speak
>> (publish, etc.), subject only to the rarest and most limited
>> restrictions, such as against child pornography. And here the issue
>> of RP comes home to roost: Child pornography is banned precisely
>> because a child cannot give legal consent, and recording or
>> publication in the absence of consent is a form of harm with an
>> identifiable victim. The deep structure of RP statutes is the same
>> principle, that non-consensuality is a form of harm against an
>> identifiable victim. The a-priori "_cannot_ give consent" and the
>> empirical "_did not_ give consent" have the same effect: no consent
>> is/was given, and harm was done.
>>
>> The RP statute does not apply to "selfies" or if the person gives
>> consent to be published (as with consenting adult porn). It does not
>> apply if the person is not identifiable from the published material,
>> a more liberal provision than with regard to child porn. It only
>> applies if the person is identifiable and does not give consent.
>> That is as minimal a restraint on the right of a person to publish an
>> image or video, as could possibly be enacted.
>>
>> As with anti-stalking laws, over the course of time it will become
>> clear that no liberty interest, and no unalienable right, is involved
>> here.
>>
>> -G.
>>
>>
>> =====
>>
>>
>> On 13-10-09-Wed 11:42 AM, Sonja Trauss wrote:
>>> I have the same q as the Forbes' author - what currently legal
>>> behavior does this prohibit?
>>>
>>> On Wednesday, October 9, 2013, Eddan Katz wrote:
>>>
>>> CA Senate Bill SB-255 - now §647(j)(4) as of Oct. 1 - is first
>>> 'revenge porn' law in the US.
>>> Eric Goldman (awesome Santa Clara Law prof) has an interesting
>>> analysis on the legal implications -
>>> http://www.forbes.com/sites/ericgoldman/2013/10/08/californias-new-law-shows-its-not-easy-to-regulate-revenge-porn/.
>>>
>>> If anyone has some technical observations or other feedback, I'd
>>> be interested to hear other takes on this. Seems like a very
>>> tricky socio-technical problem.
>>>
>>> §647
>>> http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=639-653.2
>>> > 647. Except as provided in subdivision (l), every person who
>>> > commits any of the following acts is guilty of disorderly
>>> conduct, a
>>> > misdemeanor:
>>> > (a) Who solicits anyone to engage in or who engages in lewd or
>>> > dissolute conduct in any public place or in any place open to the
>>> > public or exposed to public view.
>>> > (b) Who solicits or who agrees to engage in or who engages
>>> in any
>>> > act of prostitution. A person agrees to engage in an act of
>>> > prostitution when, with specific intent to so engage, he or she
>>> > manifests an acceptance of an offer or solicitation to so engage,
>>> > regardless of whether the offer or solicitation was made by a
>>> person
>>> > who also possessed the specific intent to engage in
>>> prostitution. No
>>> > agreement to engage in an act of prostitution shall constitute a
>>> > violation of this subdivision unless some act, in addition to the
>>> > agreement, is done within this state in furtherance of the
>>> commission
>>> > of an act of prostitution by the person agreeing to engage in that
>>> > act. As used in this subdivision, "prostitution" includes any lewd
>>> > act between persons for money or other consideration.
>>> > (c) Who accosts other persons in any public place or in any
>>> place
>>> > open to the public for the purpose of begging or soliciting alms.
>>> > (d) Who loiters in or about any toilet open to the public
>>> for the
>>> > purpose of engaging in or soliciting any lewd or lascivious or any
>>> > unlawful act.
>>> > (e) Who lodges in any building, structure, vehicle, or place,
>>> > whether public or private, without the permission of the owner or
>>> > person entitled to the possession or in control of it.
>>> > (f) Who is found in any public place under the influence of
>>> > intoxicating liquor, any drug, controlled substance, toluene,
>>> or any
>>> > combination of any intoxicating liquor, drug, controlled
>>> substance,
>>> > or toluene, in a condition that he or she is unable to
>>> exercise care
>>> > for his or her own safety or the safety of others, or by reason of
>>> > his or her being under the influence of intoxicating liquor, any
>>> > drug, controlled substance, toluene, or any combination of any
>>> > intoxicating liquor, drug, or toluene, interferes with or
>>> obstructs
>>> > or prevents the free use of any street, sidewalk, or other public
>>> > way.
>>> > (g) When a person has violated subdivision (f), a peace
>>> officer,
>>> > if he or she is reasonably able to do so, shall place the
>>> person, or
>>> > cause him or her to be placed, in civil protective custody. The
>>> > person shall be taken to a facility, designated pursuant to
>>> Section
>>> > 5170 of the Welfare and Institutions Code, for the 72-hour
>>> treatment
>>> > and evaluation of inebriates. A peace officer may place a
>>> person in
>>> > civil protective custody with that kind and degree of force which
>>> > would be lawful were he or she effecting an arrest for a
>>> misdemeanor
>>> > without a warrant. No person who has been placed in civil
>>> protective
>>> > custody shall thereafter be subject to any criminal prosecution or
>>> > juvenile court proceeding based on the facts giving rise to this
>>> > placement. This subdivision shall not apply to the following
>>> persons:
>>> > (1) Any person who is under the influence of any drug, or under
>>> > the combined influence of intoxicating liquor and any drug.
>>> > (2) Any person who a peace officer has probable cause to
>>> believe
>>> > has committed any felony, or who has committed any misdemeanor in
>>> > addition to subdivision (f).
>>> > (3) Any person who a peace officer in good faith believes will
>>> > attempt escape or will be unreasonably difficult for medical
>>> > personnel to control.
>>> > (h) Who loiters, prowls, or wanders upon the private
>>> property of
>>> > another, at any time, without visible or lawful business with the
>>> > owner or occupant. As used in this subdivision, "loiter" means to
>>> > delay or linger without a lawful purpose for being on the property
>>> > and for the purpose of committing a crime as opportunity may be
>>> > discovered.
>>> > (i) Who, while loitering, prowling, or wandering upon the
>>> private
>>> > property of another, at any time, peeks in the door or window
>>> of any
>>> > inhabited building or structure, without visible or lawful
>>> business
>>> > with the owner or occupant.
>>> > (j) (1) Any person who looks through a hole or opening,
>>> into, or
>>> > otherwise views, by means of any instrumentality, including,
>>> but not
>>> > limited to, a periscope, telescope, binoculars, camera, motion
>>> > picture camera, camcorder, or mobile phone, the interior of a
>>> > bedroom, bathroom, changing room, fitting room, dressing room, or
>>> > tanning booth, or the interior of any other area in which the
>>> > occupant has a reasonable expectation of privacy, with the
>>> intent to
>>> > invade the privacy of a person or persons inside. This subdivision
>>> > shall not apply to those areas of a private business used to count
>>> > currency or other negotiable instruments.
>>> > (2) Any person who uses a concealed camcorder, motion picture
>>> > camera, or photographic camera of any type, to secretly videotape,
>>> > film, photograph, or record by electronic means, another,
>>> > identifiable person under or through the clothing being worn
>>> by that
>>> > other person, for the purpose of viewing the body of, or the
>>> > undergarments worn by, that other person, without the consent or
>>> > knowledge of that other person, with the intent to arouse,
>>> appeal to,
>>> > or gratify the lust, passions, or sexual desires of that
>>> person and
>>> > invade the privacy of that other person, under circumstances
>>> in which
>>> > the other person has a reasonable expectation of privacy.
>>> > (3) (A) Any person who uses a concealed camcorder, motion
>>> picture
>>> > camera, or photographic camera of any type, to secretly videotape,
>>> > film, photograph, or record by electronic means, another,
>>> > identifiable person who may be in a state of full or partial
>>> undress,
>>> > for the purpose of viewing the body of, or the undergarments worn
>>> > by, that other person, without the consent or knowledge of
>>> that other
>>> > person, in the interior of a bedroom, bathroom, changing room,
>>> > fitting room, dressing room, or tanning booth, or the interior
>>> of any
>>> > other area in which that other person has a reasonable expectation
>>> > of privacy, with the intent to invade the privacy of that other
>>> > person.
>>> > (B) Neither of the following is a defense to the crime
>>> specified
>>> > in this paragraph:
>>> > (i) The defendant was a cohabitant, landlord, tenant, cotenant,
>>> > employer, employee, or business partner or associate of the
>>> victim,
>>> > or an agent of any of these.
>>> > (ii) The victim was not in a state of full or partial undress.
>>> > (k) In any accusatory pleading charging a violation of
>>> subdivision
>>> > (b), if the defendant has been once previously convicted of a
>>> > violation of that subdivision, the previous conviction shall be
>>> > charged in the accusatory pleading. If the previous conviction is
>>> > found to be true by the jury, upon a jury trial, or by the court,
>>> > upon a court trial, or is admitted by the defendant, the defendant
>>> > shall be imprisoned in a county jail for a period of not less
>>> than 45
>>> > days and shall not be eligible for release upon completion of
>>> > sentence, on probation, on parole, on work furlough or work
>>> release,
>>> > or on any other basis until he or she has served a period of
>>> not less
>>> > than 45 days in a county jail. In all cases in which probation is
>>> > granted, the court shall require as a condition thereof that the
>>> > person be confined in a county jail for at least 45 days. In
>>> no event
>>> > does the court have the power to absolve a person who violates
>>> this
>>> > subdivision from the obligation of spending at least 45 days in
>>> > confinement in a county jail.
>>> > In any accusatory pleading charging a violation of subdivision
>>> > (b), if the defendant has been previously convicted two or
>>> more times
>>> > of a violation of that subdivision, each of these previous
>>> > convictions shall be charged in the accusatory pleading. If two or
>>> > more of these previous convictions are found to be true by the
>>> jury,
>>> > upon a jury trial, or by the court, upon a court trial, or are
>>> > admitted by the defendant, the defendant shall be imprisoned in a
>>> > county jail for a period of not less than 90 days and shall not be
>>> > eligible for release upon completion of sentence, on probation, on
>>> > parole, on work furlough or work release, or on any other
>>> basis until
>>> > he or she has served a period of not less than 90 days in a county
>>> > jail. In all cases in which probation is granted, the court shall
>>> > require as a condition thereof that the person be confined in a
>>> > county jail for at least 90 days. In no event does the court
>>> have the
>>> > power to absolve a person who violates this subdivision from the
>>> > obligation of spending at least 90 days in confinement in a county
>>> > jail.
>>> > In addition to any punishment prescribed by this section, a
>>> court
>>> > may suspend, for not more than 30 days, the privilege of the
>>> person
>>> > to operate a motor vehicle pursuant to Section 13201.5 of the
>>> Vehicle
>>> > Code for any violation of subdivision (b) that was committed
>>> within
>>> > 1,000 feet of a private residence and with the use of a
>>> vehicle. In
>>> > lieu of the suspension, the court may order a person's
>>> privilege to
>>> > operate a motor vehicle restricted, for not more than six
>>> months, to
>>> > necessary travel to and from the person's place of employment or
>>> > education. If driving a motor vehicle is necessary to perform the
>>> > duties of the person's employment, the court may also allow the
>>> > person to drive in that person's scope of employment.
>>> > (l) (1) A second or subsequent violation of subdivision (j) is
>>> > punishable by imprisonment in a county jail not exceeding one
>>> year,
>>> > or by a fine not exceeding two thousand dollars ($2,000), or
>>> by both
>>> > that fine and imprisonment.
>>> > (2) If the victim of a violation of subdivision (j) was a
>>> minor at
>>> > the time of the offense, the violation is punishable by
>>> imprisonment
>>> > in a county jail not exceeding one year, or by a fine not
>>> exceeding
>>> > two thousand dollars ($2,000), or by both that fine and
>>> imprisonment.
>>> >
>>> >
>>>
>>> _______________________________________________
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>>>
>>>
>>>
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>
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