It was on New Year’s Day 2009 that Holly Jacobs, a doctoral candidate at Florida International University, discovered her Facebook profile photo had been hacked and replaced with a nude photo of herself.
Since then, Jacobs—who says her ex-boyfriend posted naked photos of her all over the Internet to gain revenge after she broke up with him—has been on a mission to draw attention to revenge pornography and make it a crime.
That mission has gained traction in Florida, where a powerful coalition of women, including Miami-Dade State Attorney Katherine Fernandez Rundle, the Florida Association for Women Lawyers (FAWL) and Mary Anne Franks, a professor at the University of Miami who serves as vice president of the Cyber Civil Rights Initiative, are drafting legislation that would make nonconsensual posting of pornography—commonly called revenge porn—a crime.
Both Rundle and FAWL intend to make this issue their primary lobbying priority for the coming legislative session.
“It’s so new—people are using the cyberworld to hurt people and hold them hostage and exert control and manipulation over them,” Rundle said. “We had a cybercrimes unit, and a domestic violence unit, but nothing that necessarily fit what is really happening in the real world. We were grappling with cases and couldn’t find an appropriate law.”
For the last several years, men have been posting nude photos and videos of ex-girlfriends on the Internet as revenge after break-ups. Several special Internet sites have popped up to encourage the posts and, in some cases, pay for them.
It became apparent to police and prosecutors that no criminal laws existed in which to prosecute these cases. Women were encouraged to file civil cases, but most either couldn’t afford lawyers or didn’t want to take on a lengthy court battle.
Since May, laws against revenge porn, also called nonconsensual pornography, have been passed in 12 states—Alaska, Arizona, California, Colorado, Georgia, Idaho, Maryland, New Jersey, Texas, Utah, Virginia and Wisconsin. An effort to pass such legislation in Florida last year failed, due to what Franks calls numerous flaws in the proposal combined with an unsympathetic Legislature. A California congresswoman is also preparing to propose federal legislation to criminalize the offense.
Rundle became interested after a case came across her desk earlier this year involving a woman whose former boyfriend posted nude photos of her online. Rundle looked at state domestic violence and cybercrime statutes and came to the realization she had no legal way to prosecute the case.
After an introduction from Miami Beach Commissioner Michael Grieco, the group met last month, and is now collaborating on drafting a law to pass this session. Rundle has started heavily lobbying legislators in preparation of subcommittee meetings beginning this month and FAWL plans to make the issue front and center for their annual lobbying days. Rundle is also broadening the coalition and has reached out to the Florida Sheriff’s Office and The Women’s Fund of Dade County.
“This is going to be one of our main priorities this year,” said Deborah Baker, president of the Miami-Dade chapter of FAWL. “We think this is an incredibly important issue, particularly for women.”
Jacobs is optimistic the bill will pass.
She was in her last two years of studying for her doctorate in industrial psychology and teaching at FIU when nude videos and photos of her surfaced all over the Internet. She would apply for jobs and is convinced she never got callbacks because of the images.
Her lowest point was when she was called into the dean’s office to explain a video that surfaced. Jacobs found a lawyer to defend her pro bono, but grew so distraught she contemplated suicide.
Jacobs was convinced her ex-boyfriend was responsible for the posts, but both Miami-Dade police and the FBI refused to take the case, deeming it a civil matter. She finally got the Hillsborough County Sheriff’s Office to take the case, and her ex-boyfriend, who lives in Tampa, was charged with criminal cyberstalking. But that department ultimately dropped the case, saying it lacked the authority to seize his computer since the crime was a misdemeanor, not a felony.
The ex-boyfriend steadfastly denies any wrongdoing.
Jacobs is now running her nonprofit organization, Cyber Civil Rights Initiative, and lobbying for criminalizing revenge porn laws throughout the country.
Proponents of the legislation are trying to move away from the old moniker of revenge porn, preferring the term nonconsensual pornography, as for-profit entities have begun using the photos either provided to them or hacked by them to make money.
Earlier this month, the coalition persuaded the Miami Beach City Commission to pass a resolution urging the Florida Legislature to enact legislation criminalizing the nonconsensual disclosure of sexually explicit images. They will next seek similar support from the Miami City Commission.
Rundle plans to start by reaching out to State Rep. Carlos Trujillo, R-Miami, to file a placeholder bill, and State Sen. David Simmons, R-Winter Park, with whom she served with on the Stand Your Ground Task Force and is former chair of the judiciary committee.
But not everyone is behind the law. The American Civil Liberties Union of Florida, while waiting to see the final version of the law, is opposed to efforts to criminalize the act.
“It obviously implicates freedom of speech and censorship of the Internet, so how Ms. Rundle threads the needle should be interesting,” said Howard Simon, executive director of the ACLU of Florida. “I think there are civil remedies for violations of a person’s privacy. I think there will be huge constitutional hurdles in trying to criminalize speech on the Internet.”
In drafting the law, Franks is aware of the obstacles she is facing, and is studying both Florida’s failed law of last year and laws that have passed in other states.
For example, someone stripping and posting photos voluntarily would qualify as an exception. Also, the phrase “causing intent to harm” as a condition is problematic, Franks feels, as it does not include those seeking to make a profit on the posts.
Additionally, limiting the definition to Internet posts would exclude those making DVD copies and distributing them “in a low-tech way,” notes Franks.
Finally, using the term “nudity” could include mothers posting photos of bathing children.
“We are looking at this as a privacy violation, similar to voyeurism,” Franks said. “We need a narrow description.”
Some family lawyers feel the legislation is necessary.
Lindsay Haber, an associate at Kluger Kaplan Silverman Katzen & Levine in Miami who focuses on family law, said she has been approached to represent several women who were victims of revenge porn in civil litigation.
“Social media has opened the door to new tactics,” she said. “I absolutely think this is exploding. We are seeing this more and more. We need both civil and criminal laws.”