published Wednesday, February 5th, 2014

Georgia lawmakers propose legislation to target 'revenge porn'

IT'S NOT THAT SIMPLE

Even if Georgia legislators pass a law making it illegal for someone to post your naked pictures online without your permission, experts say the law would not have any power in getting "Revenge Porn" websites to take down the pictures.

Yale University law fellow Derek Khanna, who once advised U.S. House Republicans about copyright law, says Section 230 of the Communication Decency Act protects websites with user-submitted content. If someone uploads something illegal online, the owners of the house websites are not on the hook. This protection allows for some of the Internet's most popular websites, like YouTube, Reddit and Facebook.

But this protection also allows the owners of "Revenge Porn" websites to keep illegal content online even after police arrest the person who submitted the picture.

Eric Goldman, the director of the High Tech Law Institute at Santa Clara University, says there is another way to make sure your unwanted naked pictures don't stay online.

• Take the picture yourself. If you were the person who snapped the photo, Goldman said, you usually own the picture's copyright.

• If someone loads this picture onto a website, ask the website to take down the image, citing the Digital Millennium Copyright Act.

• Even though Section 230 protects website owners from law enforcement, it does not protect the owners from copyright infringement. Websites that publish copyrighted photos are liable to pay as much as $150,000 per picture.

This is an age of more communication and less privacy.

Consider nudity. This was once a secret, your secret -- an aspect of life shared between two people, alone. Not anymore. Young people are in love, and they have cellphones. They have significant others to please, social norms to appease.

Click.

In October, the Associated Press-NORC Center for Public Affairs released a report about "digital abuse." Pollsters surveyed 1,300 people between 14 and 24 years old. Of those, they found that about one out of every four people either took or received a naked picture.

Click.

Those intimate moments once captured only in memory are now stored somewhere permanently, and in the hands of somebody else. From there, things can go wrong.

A hacker can find the pictures. Or someone can lose their phone. Or an ex-boyfriend can load the images on a website along with your name, your hometown and a link to your Facebook page.

Click. Click. Click.

The Internet is filled with websites where users upload nude pictures of their exes -- "revenge porn," as the websites are called. In almost every court in every state in this country, these websites have gone unlegislated. Someone exposed you -- all of you -- to the world? Tough luck.

But state lawmakers are trying to crack down. In Georgia, Rep. Kevin Tanner, R-Dawsonville, has sponsored House Bill 838, a bill aimed at making "intimate harassment" illegal.

Tanner is not alone. Lawmakers in Illinois and Arizona have proposed similar bills this legislative season. And last year, the California legislature amended the state's "disorderly conduct" law to turn sharing such pictures without consent into a crime.

However, these laws aren't as straightforward as they seem. While all agree the concept of revenge porn is ugly, some legal scholars say Tanner's bill is written in vague language and neglects important aspects of the issue. Others say it's unconstitutional.

Tanner disputes these claims. An 18-year veteran of the Dawson County Sheriff's Office, Tanner consulted with legal experts to make sure the bill wouldn't hit any snags. He said this bill must pass to protect people who have been unfairly exposed to the world in this era of mass communication.

"You could send these pictures to thousands and thousands of people with just a click of the mouse," he said.

If the bill passes as it is written now, someone will commit the crime of "intimate harassment" when he or she uploads nude pictures or videos online without the subject's consent. The law would apply to anyone who did this while in Georgia, or to anyone outside the state who uploads pictures of Georgia residents.

If convicted, the criminal would face one to five years in prison.

The law also has exceptions. It doesn't apply to police officers or prosecutors investigating a crime, such as a rape. It also doesn't apply to doctors who need to share pictures with other doctors for medical purposes. Uploading your own naked pictures won't be a crime, either. Nor will it be illegal to upload nudes done for commercial purposes, such as a magazine photo shoot.

While revenge porn victims can already fight back with lawsuits against their ex-boyfriends and ex-girlfriends, Tanner says police should handle the issue. Some victims can't afford to hire an attorney for a civil case.

"There needs to be some level of protection for those photographs," Tanner said.

But some experts say the bill is flawed. To start, there is no First Amendment exception for nonconsensual nude photos that carry a public interest.

Derek Bambauer, a University of Arizona law professor, points to a Florida appeals court judge's decision in a case between Hulk Hogan and Gawker Media, which published bits of the wrestler's sex tape. The judge ruled that Gawker was protected by the First Amendment because Hogan has made money throughout his career as a public figure.

If the law passes without a First Amendment exception, Bambauer said, a judge will later strike it down as unconstitutional.

"Passing a bad bill is worse than passing no bill at all," he said.

Asked about this issue, Tanner agreed that uploading a picture of a naked public figure is not a crime. Last week, though, he said this type of exception does not need to be explicitly spelled out. But after meeting with other legislators on Monday, Tanner told the Times Free Press, "I anticipate making a few changes."

Mary Anne Franks, a University of Miami law professor who consulted with Tanner about the legislation, agrees that the bill needs work. In a memo written to Tanner two weeks ago, Franks suggested adding a "lawful public purpose" exception.

She pointed out Sydney Leathers, the woman who exposed disgraced politician Anthony Weiner.

"The actions of someone like Sydney Leathers would be criminalized, thus discouraging disclosures made about unethical -- as distinct from illegal -- behavior of politicians," Franks wrote.

In the memo, Franks made other suggestions that have not been added to the bill. Pictures of people who voluntarily stripped in a public place (like a sporting-event streaker) should be an exception to the law.

Also, Franks said, the law should deal with more than just online pictures and videos. Revenge porn can manifest itself in other ways. For example, a man in Richmond, Va., left DVDs of his naked ex-girlfriend on car windshields near where she lived in 2007.

The bill also says that, to be illegal, the person posting the pictures or videos must be trying to cause emotional distress. This part should be removed, Franks said. The intent isn't the problem. The action is.

"[Tanner's] efforts to prohibit this destructive conduct are commendable," Franks said Monday, "but it is vitally important that bills be carefully and narrowly drafted."

Contact staff writer Tyler Jett at 423-757-6476 or tjett@timesfreepress.com.

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