Until just a few years ago, it was legal in all 50 states to post sexually explicit photos of another person online without their consent. Now, after years of piecemeal efforts to criminalize so-called “revenge porn,” a national solution may be on the horizon.
At a press conference Thursday morning, U.S. Rep. Jackie Speier, D-California, introduced the Intimate Privacy Protection Act, which would impose criminal sanctions on those who engage in non consensual pornography. Backed by four co-sponsors split evenly across the aisle, the proposed law carries a penalty of up to five years in prison and a monetary fine.
Throughout the day, anti-revenge porn advocates lauded the bill for its strong sanctions. At the press conference, Anish Vora, a victim of nonconsensual pornography and victims’ rights advocate, shared her experience being prompted to drop out of school and move out of state after an ex-boyfriend posted intimate photos of her online.
K&L Gates Miami partner Elisa D’Amico, co-founder of the Cyber Civil Rights Legal Project, which offers pro bono help to victims of revenge porn, praised the bill, saying that it would serve to fill many of the gaps currently present in the patchwork of state laws. D’Amico and her colleagues from K&L Gates work closely with the leaders of the Cyber Civil Rights Initiative, an advocacy group that assisted in drafting the law, on identifying and assisting revenge -porn victims.
However, some have raised questions over the First Amendment implications of such a bill, and tech companies have been wary about its potential impact.
Michael Macleod-Ball, chief of staff and First Amendment counsel at the American Civil Liberties Union, said the ACLU fears that the bill would lead to the prosecution of clearly innocent individuals, such as those who share artistic or historical material.
Instead, the ACLU is advocating for a bill that criminalizes only those who demonstrate malicious intent in distributing pornographic material. “What I don’t get is why you would want to draft a law that would be broader than that,” he said.
A much earlier draft of the legislation would have required prosecutors to prove a defendant’s knowledge that the explicit material would likely cause emotional distress to the victim. However, the final draft contains a lower standard, requiring only that the accused demonstrate “reckless disregard for the lack of consent.”
Law professor Mary Anne Franks of the University of Miami School of Law, who helped draft the bill, said couching the standard in terms of consent makes the proposed law more effective. Many times, she said, perpetrators are not operating with clearly malicious motives — sometimes they distribute material just to be funny or entertaining. That conduct should still be illegal, she said.
D’Amico agreed, adding that she has had to turn away potential pro bono clients who were victims of horrific conduct because state-law standards that require a showing of intent are difficult to meet.
The bill’s drafters acknowledge that there will be opposition, particularly on First Amendment grounds. But they insist the law passes constitutional muster.
“We worked extensively with constitutional experts on the bill, a dozen of whom have said that this does pass First Amendment scrutiny,” Franks said.