We Shouldn't Copy The US' Flawed National Revenge Porn Bill

Up until this month, revenge porn wasn't criminalised in New York City, and there are still 11 US states without laws criminalising the unwanted distribution of private images. But today, four US Senators introduced a revenge porn bill, titled ENOUGH, the Ending Nonconsensual Online User Graphic Harassment Act. The bill was introduced by Senators Kamala Harris (D-CA), Richard Burr (R-NC) and Amy Klobuchar (D-MN), alongside Rep Jackie Speier (D-CA).

Photo: Getty

Rep Speier introduced an earlier version of this bill - the Intimate Privacy Protection Act - in 2016, but it never became a law. ENOUGH is "essentially the same" as Speier's previously introduced bill, according to Mary Anne Franks, a professor at the University of Miami School of Law and a director at the Cyber Civil Rights Initiative. But according to Franks, the 2016 bill was "clearer and slightly more carefully drafted" compared to the bill introduced today.

It's difficult to draft revenge porn legislation that is effective in protecting victims in a variety of circumstances, as Jezebel has pointed out. While Franks believes the ENOUGH act "is desperately needed to deter this destructive violation of intimate privacy", there is still room for improvement.

This bill applies to both original images as well as modified formats, which Franks says "raises the question about scope and application". She believes that while manipulated images are still an important issue to tackle, they are better dealt with as a form of defamation. What's more, the title of the bill includes the term "harassment", which Franks finds misleading. She says the bill was "deliberately drafted to reflect the fact that the prohibited conduct is not harassment, but the violation of privacy".

The ACLU argues that the first amendment protects non-consensual photography, and to appease this belief, legislators may write laws that more narrowly focus on intent instead of a privacy violation - which is more difficult to prove, and doesn't encompass many victims of revenge porn. A press release announcing the bill even notes that it aims to "strike an effective balance between protecting the victims of these serious privacy violations and ensuring that vibrant online speech is not burdened".

In order for a defendant to be prosecuted under this act, there would need to be proof that the perpetrator both knew the victim didn't want the image to be shared and also that they would be harmed by its dissemination.

"I don't see anything in the First Amendment that says there has to be an intent to cause harm to the victim," Professor Erwin Chemerinsky, dean of the University of California Berkeley School of Law, said at the 2017 US Department of Justice Cybercrime Symposium in regards to IPPA. "If the material is intentionally or recklessly made publicly available, I think that is sufficient, and I don't think it should just be about intent to cause harm to the victim. Imagine that the person is putting the material online for profit or personal gain. That should be just as objectionable as to cause harm to the victim."

It's about time there was a federal law against revenge porn in the United States. A 2016 survey found that about four per cent of Americans have been victims of it, or threatened to have their intimate images shared online. Tech companies are beginning to implement new tools to combat the spread of non-consensual explicit content on their platforms, but beyond the risk of getting your social media account suspended, consequences in the US vary by state and city. While it remains to be seen if the legislation will pass - Speier's previous effort failed - it's reassuring to see a continued push against this gross invasion of privacy.

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Comments

    We shouldn't be copying anything thr2 USA is doing. Period.

    The law here should just be if you share a personal illicit photo of someone else without their permission, You should recieve jail time and/or a Sex Offender stamp on your record for the rest of your life.

    No ifs no buts.

      No, that's too broad.

      I don't think people should be sharing explicit photos (or videos or audio) of someone without their consent but your "law" isn't specific enough. I'm also not entirely sure that trying to brand someone as a sex offender is appropriate in this scenario.

      There needs to be strong definitions of what exactly warrants offending content. For example, does a photo of a girl in a bikini on the beach qualify? Or does she need to be topless, or nude, or engaged in some sort of sexual activity? Where is the line drawn on what is content that shouldn't be shared?

      I think intent also plays a major part no matter what the article says. At least in terms of deciding punishment. Intent to profit or intent to harm, or just stupidity (sharing something without thinking about it) for example.

      Unlike the US we have some privacy protections (they seem to be relying on the first amendment to get away with a lot of stuff). So maybe rather than a whole new set of legislation we should be looking at changes to existing legislation.

    We Shouldn't Copy The US' Flawed National Revenge Porn Bill
    No we shouldn’t, but where is the discussion relating to Australian laws in the article?

      The writer is based in New York. When she says 'we', I assume she means New Yorkers... I think.

        That makes sense. Thanks.

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