Revenge Porn Law Is Stupidly Complicated

Photo: J. Scott Applewhite (AP)

Now-former Congresswoman Katie Hill bid a tragic goodbye Thursday on the floor of the U.S. House of Representatives, leaving her apartment for the first time in the wake of a gruesome public shaming that she has vowed to combat. The tabloid publication of revenge porn, which caused her to resign on Sunday, calls into question journalistic ethics at bare minimum and more generally what the hell a public figure can do when a cadre of chauvinists and political enemies project her most private moments on the world stage. “I am leaving because I don’t want to be pedaled by papers and blogs and websites used by shameless operatives for the dirtiest gutter politics I’ve ever seen,” she said.

Hill refers to the right-wing outlet RedState, and later, the Daily Mail, which published photos, allegedly shared by her soon-to-be-ex-husband, depicting her nude in some cases, evidencing an intimate relationship with a campaign aide, conduct which might (questionably) fall under the umbrella of “public interest”—if so, that would largely strip her right to privacy as a public figure. She says that she has been told that the perpetrators would share “hundreds more photos and text messages ... until they broke me down to nothing, while they used my faults and my past to distract from the things that matter most.”

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Hill has claimed that this was the handiwork of not only her “abusive” husband, Kenny Heslep, but also “Republican operatives,” which gels with recent reporting. BuzzFeed obtained 2 a.m. text messages that Heslep allegedly sent to a local radio host Stephen Daniels, asking: “Any interest in an interview, and the whole story yet? 🙂”. Daniels tells BuzzFeed that he’d declined further details and alerted Hill’s office. Heslep denies sharing the photos and has opted to communicate to the press via his dad, Fred Heslep, who claims that he’d been told his son’s computer had been “hacked,” which was concluded from “having computer issues.”

Yesterday, the Los Angeles Times traced the RedState and Daily Mail bylines to a former campaign advisor to Hill’s Republican predecessor, Steve Knight, which neither publication disclosed.

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Hill has admitted to and apologized for an “inappropriate” relationship with a campaign aide whom she has declined to name, though a relationship preceding her term in office does not technically violate the House code of conduct. She has denied RedState’s further unsubstantiated claim–quoted from Heslep’s Facebook post–that Hill had been involved with another staffer while in office, which would be a violation of post-#MeToo House rules. The House Ethics Committee has opened an investigation into that allegation.

Hill has told the New York Times that she has notified Capitol Hill police, and that an investigation into the source of the leaked photos is underway. “Having private photos of personal moments weaponized against me has been an appalling invasion of my privacy,” Hill stated in her resignation announcement. “It’s also illegal, and we are currently pursuing all of our available legal options.” Hill has stated that the images were taken without her consent.

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In a subsequent YouTube video, she added: “Some people call this electronic assault, digital exploitation. Others call it revenge porn. As a victim of it, I call it one of the worst things we can do to our sisters and our daughters.”

What is revenge porn?

Revenge porn, often referred to as non-consensual pornography, is generally defined as the distribution of imagery of a recognizable subject in a “sexual” situation or with “intimate parts” exposed. Sometimes it depends on malicious intent; in other cases, it just applies to non-consensual sharing.

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“If you find yourself a victim of non-consensual pornography, the first step is to take a deep breath,” K&L Gates attorney Elisa D’Amico, who co-founded the Cyber Civil Rights Legal Project, told Gizmodo. “You’ll need to work quickly but calmly. If you can remember only one thing, it’s: delete nothing and preserve everything.”

D’Amico advises that you save all documents, screenshots, copies of webpages, emails, text messages, etc, and make sure that screenshots of webpages include the URL. Diary everything you can remember in chronological order. Then bring this information to local law enforcement, file a report, and take down the report number. Use this to check the status and nudge law enforcement, which can be slow or lack the resources or know-how to deal with cybercrimes.

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The “public interest”

D.C., where Hill was residing at the time of the photos’ publication, and California, where Heslep is based, allow for explicit photos to be shared in matters of public interest. But the photos of Hill with her campaign aide were totally unnecessary to prove the (again, consensual, acceptable) relationship with the campaign staffer, as RedState also published numerous text messages that convey the same information.

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The Daily Mail’s editorial board also thought fit to run a nude image of Hill holding a bong, predating her time in office, for which there is no text substitute. So now the courts will need to deliberate whether “newsworthiness” justifies the Daily Mail’s merry scandal-jockeying.

“First, what is the legitimate public concern?” Erica Johnstone, co-founder of the nonprofit legal privacy advocacy group Without My Consent, told Gizmodo. “And, assuming there is one, how much visual content (if any) is needed to tell that story? You probably don’t need to publish their genitals, right? Are there emails? Text messages? Other forms of narration?”

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The bong could be fake, it could be a joke, there could be no drugs involved, and the image was taken before Hill’s term in office, and, she claims, without her consent: all factors which call into question what qualifies as “public concern,” which is TBD.

“The newsworthiness of the content, versus how much you can publish, really needs to be hammered out by the courts,” Mary Anne Franks, president of the Cyber Civil Rights Initiative, told Gizmodo. “I think it’s much harder to justify that the disclosure of the pictures would be necessary to communicate the information that might be in the public interest.”

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Franks worries that the argument that everything a candidate does prior to her term in office presupposes a future in which a public figure’s entire life turns to grist for the gossip mill.

“We need to think long and hard about whether that’s a world we want to live in.”

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State criminal statutes are a mess

At the moment, there is no federal law specifically governing the distribution of non-consensual pornography. It is litigated by a mixed bag of state statutes with varying degrees of punishment and definitions of “revenge.” At the time of this writing, 46 states and the District of Columbia have revenge porn statutes. In absence of a revenge porn statute, though, the perpetrator might be guilty of numerous other offenses, such as stalking or copyright violation, as 80 percent of revenge porn content is selfies, which are generally owned by the subject of the photos.

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In fuzzy cases, states are left to work out jurisdiction amongst themselves, in which case the outcomes of Hill’s case might look very different. Prosecutors would have to uncover who shared the photos and where Hill was at the time they were published (likely California and D.C., respectively).

Under D.C. law, jurisdiction covers “any part of the violation,” including the victim’s location; there, prosecution would have to prove that the defendant shared the images with intent to harm, which is problematic because, as the Cyber Civil Rights Initiative has found, in 80 percent of cases, non-consensually shared pornographic images are shared for “entertainment purposes” (for example, of celebrities). If whoever possessed the images of Hill had shown them to five or fewer people with a preexisting agreement not to share and intent to harm her, that person would be charged with a misdemeanor and pay a maximum penalty of $1,000 and/or not more than 180 days of jail time. If the perpetrator had published the images for an audience of six or more people, with a preexisting agreement between the parties not to share the images and intent to harm her, he would be charged with a felony and face a fine of up to $12,500 and/or three years of jail time.

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In California, where revenge porn amounts to “disorderly conduct,” a prosecutor would have only to prove that the perpetrator had reason to believe that posting the images would cause harm (which, if it was, in fact, Hill’s husband, he certainly would). The person who distributed the images would face a maximum fine of $1,000 and/or six months in jail.

“Jurisdiction remains one of the largest problems in prosecuting revenge porn or non-consensual porn cases, both criminally and civilly,” D’Amico told Gizmodo.

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Does “intent” matter?

The proposed Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act, a Congressional bill (which Hill co-sponsored) would uncomplicate most of this by hinging the crime only on consent. The penalties would amount to a fine and/or up-to five years in prison, and prosecution could be brought extraterritorially if the victim is a U.S. citizen or permanent resident–say, to Britain, where the Daily Mail is based.

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The law wouldn’t work retroactively, so it wouldn’t apply to Hill. But if it were enacted at the time Hill’s photos were distributed, it would test a public figure’s right to privacy since the offender might be protected if he had reason to believe the images contain matters of public interest. “This is exactly the kind of case that would test the boundaries of a law like SHIELD,” Mary Anne Franks, who helped craft the bill, told Gizmodo.

Many like journalist April Glaser, writing for Slate, advocate for getting rid of intent in favor of consent. Basing revenge porn policy on consent would cover, for example, the hundreds of servicewomen whose nude photos were shared in a 30,000-member Facebook group “Marines United.”

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SHIELD also explicitly exempts content providers and online platforms from liability, stipulating that platforms are not responsible for user-posted content, in keeping with Section 230 of the Communications Decency Act, a foundational law of the internet, which Republicans are eager to dismantle. Google and Facebook, which clearly don’t want to be penalized for user-uploaded revenge porn, have attempted to self-police–in Facebook’s case, by soliciting users’ nude photos in order to automatically identify them and pre-emptively block their distribution.

According to a 2016 report published by the Data & Society Research Institute, one in 25 Americans has been a victim of revenge porn. Meaning that if SHIELD passes, it could stand to protect millions of people.

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The ACLU, on the other hand, firmly opposes the “consent” premise, arguing that it poses a threat to free speech. “Just passing a law that says it’s illegal to publish a nude image without consent, that’s not going to pass the courts,” ACLU senior staff attorney Lee Rowland told Inverse in 2015. “The terms are so broad it risks making venerable institutions like libraries and photography collectives into criminals for sharing an images of torture at Abu Ghraib or the child being napalmed in Vietnam. Nobody says privacy issues don’t exist—they absolutely do. But there are many places where public interest outweighs harm done.” The ACLU has not responded to Gizmodo’s request for comment.

Damages

Revenge porn laws are criminal statutes, and most statutes yield very limited fines and/or jail time. You can also file a civil suit, which is designed to compensate the victim for harm (typically psychological, emotional, and economic) rather than send the perpetrator to jail. But the punishment could arguably land a more proportional blow.

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Tort laws provide a menu of options for restitution, i.e., intentional infliction of emotional distress, public disclosure of private facts, and invasion of privacy, and copyright infringement, and add them up. In a 2018 federal lawsuit filed in a California district court by D’Amico’s team, the victim was awarded $6.4 million: a combination of $450,000 for copyright infringement, $3 million for severe emotional distress, and $3 million for additional damages including stalking and online impersonation with intent to cause harm.

But the whole process is emotionally grueling and re-traumatizing. Often victims decide to settle. “While taking a case to trial may sound exciting, the truth is that for someone who has already suffered so greatly, the best course of action is often to help that person obtain closure,” D’Amico told me, “and then to help them begin to rebuild their life both online and offline.”

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Hill has enlisted Carrie Goldberg, who’s defended victims of Harvey Weinstein, to investigate the “universe” of perpetrators. “The legal options may not be perfect and we need a federal revenge porn law that provides both civil and criminal justice,” Goldberg told the New York Post, but she’s certain that justice will be served. “Whether you are an ex-partner, a political opponent, a publisher, or the Republican National Committee, don’t think for a second you’ll be getting away with destroying a woman’s life.”

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About the author

Whitney Kimball

Staff reporter, Gizmodo. wkimball @ gizmodo