Thursday, July 24, 2014

It's nearly impossible to get revenge porn off the internet.

a woman sits at a computer AFP/ Getty

On Tuesday, Adam Kuhn, the chief of staff for Ohio Congressman Steve Stivers, was forced to respond after a woman he was involved with tweeted a picture of his penis. Some call the pic "revenge porn," a common term for explicit photos and video released publicly without the consent of one of the parties involved, especially when those photos/videos are posted to websites which specialize in such material. Experts disagree about how the law should handle revenge porn. Some favor criminalizing it, while others, like Sarah Jeong, have argued that criminalization does more harm than good, and that civil actions, such as copyright claims, can also be used to combat it.

Mitchell J. Matorin is directly involved with civil efforts to fight revenge porn, and has written in favor of changing the Communications Decency Act. He is an attorney whose practice focuses on intellectual  property, Internet and computer law, and online defamation. I spoke with Matorin on the phone Tuesday about the issue. This interview has been edited for length and clarity.

Let's take the case with Adam Kuhn. Is this revenge porn?

It's not clear whether he took the photographs or whether she did, and it wasn't posted on a revenge porn website. So it's not traditional revenge porn. Traditionally, revenge porn is nude pictures of a person posted on a website where they remain forever without that person's permission. It's not necessarily done for revenge, though that is most often what causes it. It can be done when someone thinks, "Look at this beautiful woman I have. I'd like to share." But I should point out it's not just women who are victimized this way. It's also men, although most of the victims tend to be women. But involuntary porn affects anybody who is involved in a relationship and exchanges erotic photos with their significant other.

It's very easy to blame the victim. It's very easy to write this off as stupid women or men taking pictures, and to slut shame them. People can deal with it that way and say that it's not actually a problem. If you actually have prominent victims, in particular male victims, congressional victims, then perhaps you can get someone to actually look at the law and realize that it needs to be changed. It's possible that this sort of thing is what it takes for Congress to look at the problem.

I think until people with the power to do actually start treating this as a serious issue and not just as women getting themselves in trouble, it's going to be very difficult to deal with this major problem.

What laws are in place that can help victims of revenge porn?

Well there are two options, but both of them have issues. One is criminal law and the other is civil law.

There are some criminal laws on the books already that could be asserted against people who actually posted the photographs online. This includes things like criminal harassment, and stalking. But a lot of this is so new that the laws on the books don't really seem to apply. There is a movement to start enacting laws to actually criminalize the posting of nude photographs of somebody on the internet without their consent. The exact language of that varies from state to state and it has merit to the extent that your goal is to go after the people who are putting the photographs online.

The problem is that it doesn't go far enough. You can prosecute the person who did it, but the problem is that the photos are going to remain online on the website where they are posted, and then they are going to spread from that website to other websites. You can prosecute the person who did it all you want, but it doesn't address the problem of what happens to the victim after the photographs appear online.

The second problem is the Federal Communications Decency Act. Section 230 of that law basically says that you cannot hold a website or internet service provider responsible for information that is posted on a website or a blog by somebody else. The specific language is that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided." So anything that would result in holding the website owner liable, or something that someone else has posted, is barred from federal law. So they are immune. This is the hook that all of these websites depend on. They are immune as a matter of federal law, and the only carve out that is available is copyright law because it specifically carves out intellectual property.

Can victims use copyright law to get their images off the internet?

The problem is, this is not a copyright issue. Technically, if the victim actually took the photographs of him or herself, then they own the copyright. So they could in theory file a copyright infringement lawsuit. There are many problems though. What if she didn't take the pictures herself? What if her boyfriend did? Well then he has the copyright, and she has no copyright claims that she can assert. But even if she does have a copyright claim, she can only sue for monetary damages if she registers the photograph with the copyright office and if she files the lawsuit quickly enough. The problem is, how do you prove your actual damages?

The problem is, you have to hire a lawyer, you have to incur all the costs, and you have to have somebody to sue. These websites are very well anonymized. The owner of the domain is typically hidden behind a proxy service. It is registered through a domain registrar somewhere else, and the website itself is hosted on a computer server somewhere else. These people who run these websites love putting up information about the victims: their photographs, and their names, and their locations, and their Facebook links, and Twitter pages, and telephone numbers. But they themselves hide, so you don't know who to sue.

So copyright law is something that some of these free speech advocates have pointed to as a valid remedy, and that's nonsense. It just doesn't provide a remedy. So then what do you do? If you own the copyright, you can send a demand to the website under the Digital Millenium Copyright Act and ask that they take them down. 9 times out of 10, those letters are ignored. You can also request that Google or Bing or other search engines remove the links to them, but only if you own the copyright, and only if they think that you own the copyright.

Is it difficult to prove who posted the photographs?

Revengeporn2

A man sits on his computer. Image by Artur Debat/Getty

Absolutely. Let's assume that a woman or a man provides photographs to their significant other and later on they break up and those photos end up online. You would initially think that of course it must be the ex. It may very well be. But can you prove it? Beyond a reasonable doubt? In a criminal proceeding?

In the case of Holly Jacobs, she suspected it was her ex. It may or may not have been. But they couldn't prosecute him because he said, "No it wasn't me." It's very difficult to prosecute from an evidentiary standpoint, and then you have to find a prosecutor that's actually interested.

A prosecutor has limited resources, and so if they don't have the evidence, then they aren't going to be eager to prosecute. There's also a very strong tendency to blame the victim. You've got the evidentiary problem of having to be able to prove that they are the ones that did it. And you've also got the problem of, what if it wasn't the ex? In some cases, someone hacked an email account, so you have no idea who did it. This happened to one of my clients. She had forgotten that she had sent the pictures to her boyfriend. He had deleted them, but they were still in her sent mail, and someone hacked in and took them.

So if you can't prove who did it and prosecute them, how do you get these images off the internet?

I have submitted requests to Google on behalf of clients who took the photographs themselves and clearly own the copyright, and it takes Google weeks to respond to these. I mean, they get millions of these. And then you get a response sometimes that says "No, it doesn't meet the requirements. There's no explanation.

I had one client who took the photographs herself, and they were posted on a website. I submitted the request to Google, and they would not take them down. Even if they do take them down, they then send the request to a group that posts that request online. Even if you file on behalf of your client, and don't identify your client, often the url for the websites contain the victim's name. And you have to identify the URL to have the link taken down. So the links to the request start popping up, and the posted letter contains the full link of how to find the photographs, so you can go directly there.

You have this copyright law that technically, in some instances, might provide some measure of relief, but it doesn't actually fix the basic problem, which is that the photographs are still there. That's the biggest problem. You search Google for someone's name and right up top you see "nude pictures of Jane Smith." Someone applying for a job is going to get Googled, and lo and behold the potential employer is going to see the photographs.

So is the answer to criminalize the posting of these photographs?

The movement to criminalize is certainly worthwhile, and I think it should be done, but it's not going to attack the real issue, that these images are online and they stay there.

I think it has a deterrent effect. If you can prove who did it, there's no reason it shouldn't be prosecuted. I think it's a worthwhile effort. Yes it serves a person, and yes it will deter some people from doing it, but it's not nearly sufficient to address the problem.

You have this copyright law that is carved out for purposes totally unrelated to revenge porn, being twisted to fit this pattern that it doesn't really fit at all. And you get very little if any relief out of it, and meanwhile the websites that are actually posting these photos continue posting them, and they are making money off of it.

Changing the law is hard, but it's being done state by state. There are laws being enacted with varying terms that criminalize the posting of these photographs. So, it is being done gradually, and that's great.

What about public figures? If we criminalize involuntary porn, how does the media keep people like Anthony Weiner accountable?

Anthonyweiner

Anthony Weiner at his campaign headquarters. Image by Mario Tama/Getty

The carve-out for public figure is intended to address the argument that's made by people who are against criminalizing this behavior. They believe that there is a legitimate need to be able to post information about public figures like Anthony Weiner, and that it speaks to their fitness for office. That's fine. I don't have a particular problem with that carve out.

The problem is that the carve out can swallow the entire rule depending on how it's phrased. You want to phrase the law so that you can hold politicians accountable but the language could be broader than that. A person who holds public office, okay that's easy to define, but what about someone who works in a bureaucratic role but not necessarily an elected role. What about a judge? There are areas that are going to fall outside of whatever definition of public figure they are using, or that could be stuffed into that definition even though what we are talking about is a private individual. There are legitimate issues with respect to public figures, however they're defined.

The problem is that that legitimate issue is being cited as a reason not to pass laws protecting non-public figures.

So it seems like criminalization is a messy process. Are there any other avenues to fixing this problem?

The problem is the Communications Decency Act, which makes these website owners immune. If you take away that immunity, then economics factors come into play. People would have to start evaluating how much money can I make off this, and how much will I lose when the victim sues me? The economic incentive will go away if the immunity goes away, and it becomes easier to determine who is behind them. You've got to take away. We have got to make it easier to find the people behind these things.

You can also change the laws so that the search engines have to remove these things whether or not the person took them themselves. It is viewed by Google as an infringement of their First Amendment rights to force them to remove links to material that is online. There are exceptions — they'll do it for child pornography, they'll do it for copyright violations — but beyond that, they really won't remove anything. On the one hand, you can understand why Google wouldn't want to be tasked with removing everything that someone doesn't like. On the other hand, this is a specific problem that Google could address if they wanted to.

They did this with sites like mugshots.com. These are websites that take public records of people who have been arrested, and they take that public information and they post it online. People's mugshots and what they were arrested for was now available online. It was always available publicly, but you would have to go down to the police department to get it. These websites started popping up, and they started demanding money to remove the information. Google took it upon itself — it didn't have to — to demote these websites so that they don't show up toward the top of the search results when you search for a person's name. And if a link is buried, it's dead. They took it upon themselves to bury these.

They don't do that for revenge porn sites. Google is perfectly happy to continue featuring these websites at the top of their search result, despite what it's doing to the victims. So that's a value decision by Google I guess. Given that value decision, the only solution is to change the law. So that they actually have to take this stuff down, and have to do so quickly whether or not there is a technical copyright violation in play.

How hard would it be change these standards?

The issue of changing the Communications Decency Act is a big thing politically. It was enacted for a particular purpose, and I think it was a good law. The problem is that this thing has popped up. When you start saying that the Communications Decency Act needs to be changed, then you bring in all of the vested interests and the free speech advocates, the Googles. All these vested interests that led to the enactment of that act are inclined to fight against any change, because once you open it up, who knows what's going to happen. It's like a constitutional amendment, once you start, who knows what people are going to ask for? I think it's much more difficult to change that law politically than it is to enact criminal laws. Perhaps that's why there has been so much focus on the criminal laws because that's something that can actually be accomplished.

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