Yeah, Sorta.

by Belle Waring on July 29, 2019

This article is posted on Slate but is not, in fact, #slatepitchy, but rather, informative! NY recently passed a law banning revenge porn. Which is great! But it has a flaw. A loophole so big you could take the trouble of dynamiting a tunnel below some Alpine pass and then float a loaded container ship through it on a shallow, glassine stream. Because, you see, if the person non-consensually uploading pornography has the “intent to cause harm to the emotional, financial or physical welfare of another person,” then it’s a crime, and the victim can bring suit on the grounds that the perpetrator shared images of her “with the purpose of harassing, alarming, or annoying” her. But…

…[U]nfortunately, most cases of nonconsensual sharing of sexual images wouldn’t necessarily fall into the category of harassment, nor does the individual distributing the photos always want to cause some kind of distress to the person depicted.
Take the case of the 30,000-member Facebook group Marines United, which was outed in 2017 for hosting hundreds, potentially thousands, of explicit photos of female Marines and veteran service members without their consent. The creators and users of that group likely weren’t sharing images of unclothed female Marines in order to harm them [?]. They were sharing the photos for their own entertainment. The group’s members probably didn’t even want the women to know their photos had been posted in the group. Under the New York law, those women wouldn’t have much recourse. According to a 2017 study conducted by the Cyber Civil Rights Initiative, a nonprofit that works on policy and helps victims of nonconsensual pornography, 80 percent of people who share private and sexual images of someone without consent aren’t trying to harm anyone….

Here I must object rather strenuously. Is it because I possess some version of the view, probably wrongly attributed to Native Americans, that photographs capture and diminish your spirit, such that I believe shared photographs eat away at your soul like a subtle acid whether you know the cause or not? Ah, interrogating myself, hmm, somewhat? That is, say we are to imagine a case in which some towering asshole of an ex is sharing sexual photos of me online in a huge, 30,000 man strong facebook group. And I don’t know this fact. A good 400 men are out there enjoying themselves on the back of this dehumanization at any given time, and I in all ignorance go about my life imagining I retain my personhood and dignity. But then I discover what has been happening. My sense of harm is deeply retroactive. It’s not as though I imagine only the moments or hours or days before my images are taken down as being the cause of harm. Those are, in fact, the least of it.

Is my tormentor’s general, vague hope that I not discover what he’s done; his willingness to roll the dice on that; his malicious enjoyment at subjecting me to something he knows would agonize me if I knew, such a good defense against his having done it with the intention of causing me distress? Let’s stipulate it was done for his own sexual enjoyment. What, exactly, does he find sexually arousing in this case, if not my humiliation, in which case he must intend to humiliate me in order to satisfy his desires? Or to come at it another way, isn’t “without the victim’s consent” really just the end-all and be-all of this crime?

And if someone whose photo was posted to the group did try to use the New York law, “It would be a nonstarter,” said Mary Anne Franks, a law professor at the University of Miami and the author of the first model bill to criminalize revenge porn in 2013. “There’s a huge difference in saying, ‘I know he’s doing this to hurt me’ and being able to prove in a court of law that’s why he did it. If you ask yourself, ‘What other reasons could a person give?’ a defendant could easily say, ‘I actually meant it as a compliment. I think she’s so beautiful that I shared her picture for that reason.’ ”

[Belle grinds teeth in so audible a fashion that John can hear them in Singapore from West Virginia. “Jesus what did I do?”, he wonders, half-asleep.] “She’s so beautiful!” is this an actual defense? If this is a defense against a law you have written, then you have written a very bad law indeed. But who could have lobbied you to write so bad a law?

As was the case in other states, the New York law was watered down in part thanks to advocacy from groups like the Internet Association, the powerful tech industry lobbying organization that represents companies like Google and Facebook. The Internet Association has long argued that revenge porn bills must include language about the intent to harm, according to Franks. She says that big tech companies want to protect themselves from being sued for hosting the images (despite the fact that technology companies are already protected by another law that shields them from liability for what their users post)….

Additionally, a woman posting revenge porn is bringing her first amendment rights into this. ASD3@FF*&%XSH@#. (That’s a literal quote from me). I have never had this problem but I did have an comparatively extremely minor annoying problem with a friend who…I mean, I knew he had a crush on me but this seemed extreme…anyway he carefully photoshopped my head onto a (reasonably tasteful) nude, and then actually showed it to me?! Like, slow your roll crush-boy. (Crush-man. He was much older than me). And it was reasonable to infer that, having done so once, he was likely to do it again, or have done it before, with nudes that were less tasteful. And I didn’t even like that at all, and he wasn’t sharing them on the internet! Uhhhh. I guess? [Belle considers the perfidy of human nature; weighs likelihood of corpses in thawing permafrost reviving 1918 pandemic; eats over-large slice of newly made lemon merengue pie to soothe raw nerves.]

NOTE TO MY BELOVED PLAIN PEOPLE OF CROOKED TIMBER: the comments thread to my last post was an epic shitshow. I have never been mansplained to about my own rape and stalking so much in my entire life, while listening to claims backed up by the most tendentious and point-scoring arguments. And I spent plenty of time in a philosophy department! (Which I loved, but we have the worst gender ratio of any departments.) You guys can do better than this. The preponderance of comments do not need to defend revenge porn. I believe in you.

{ 106 comments }

1

Orange Watch 07.29.19 at 5:30 pm

Let’s stipulate it was done for his own sexual enjoyment. What, exactly, does he find sexually arousing in this case, if not my humiliation, in which case he must intend to humiliate me in order to satisfy his desires?

This isn’t actually as reasonable an assumption as it might seem on the surface. In semi-private illicit media sharing communities (which is the sort of site where this often but certainly not always occurs), in-kind contribution is often a currency to gain/retain access, and in any non-purely-anonymous group-sourced media community, in-kind contribution has value as social currency. It’s entirely reasonable to assume selfishness, callousness, and indifference towards the victim rather than malice are motivating some non-trivial portion of non-consensual porn publication.

Or to come at it another way, isn’t “without the victim’s consent” really just the end-all and be-all of this crime?

It absolutely should be, yes. The carve-outs based on intent are despicable.

Admittedly, I am largely consequentialist in my ethics, so my sympathy for intent-over-outcome is (in my experience) lower than that of most Americans.

2

rm 07.29.19 at 5:43 pm

Posting the pictures IS harm, FFS.

“All participants in a photo/video must agree to post online” would be a reasonable and moral standard, so of course that’s impossible to have.

3

Cervantes 07.29.19 at 5:56 pm

It is of interest that I searched for news articles about the NY revenge porn law and none of them mention this limitation. They all say that it simply makes it a crime to disseminate sexual images (quite specifically defined) without the person’s consent. You have to read the Citron and Franks analysis even to learn this information at all, let alone find a discussion of it. This includes the NYT of course but I looked at several others as well.

4

JBL 07.29.19 at 6:04 pm

“I believe in you.”
Good luck with that!

I think the article is Slate-pitchier than you give it credit for. In particular, the “… a defendant could easily say …” bit is purely hypothetical. Like, defendants can argue all sorts of things all the time, the question is whether any judge or jury would find such a thing plausibly convincing. Since apparently laws like this are now quite widespread, it would have been a much more interesting article if it included any information about whether this hypothetical objection has ever arisen anywhere, and what happens when it is raised (if it ever is). The final note (that a law is only as good as its enforcers) seems more important as far as whether the law makes a difference or not.

5

Belle Waring 07.29.19 at 6:27 pm

Mmmmm, these seem like fair objections! If the law is not as it is described it could be a better law than it appears. The woman claiming a first amendment right to share photos of her ex-husband and another woman is involved in a related, before the Illinois state supreme court, which might show serious limitations on this type of law at all.

“Her attorney, Igor Bozic, argued once someone shares sexual photos, they don’t get a say in what happens with them.

“A gift unconditionally given to somebody can never be truly private, especially when that gift is legal in and of itself … and you give it to somebody without any expectations, any conditions,” Bozic told the justices. [Do you really have no expectations that your private gift of sexual images won’t be shared across the internet?]

This is an argument to the effect that the only moment at which consent can be given or is important is the moment at which the would-be-revenge-porn distributor receives the images, perhaps even just by the victim’s having uploading them to the cloud. This was the argument behind The Fappening, so that many had zero sympathy for the women victimized. The idea was that it was so inherently stupid to put photos in the cloud that the idiot women had no say in what happened to the phone images backed up there. Really revolting.

6

Orange Watch 07.29.19 at 7:06 pm

rm@2:

Posting the pictures IS harm, FFS.

This should be the only thing needing said, but we as a society and our legal system give credit to intentional principles such as the noxious Doctrine of Double Effect. If we seriously entertain the idea that known consequences of a particular action can be unintended despite intending to do the particular action that will cause them (and we’re really quite keen on this notion), it becomes possible for us to do all kinds of convenient gymnastics whereby e.g. the harm of non-consensual intimate image publication is the reaction of viewers and/or the subject, while the actual act of posting it is merely posting an image, which is morally neutral.

We need more consequentialism in our ethics, but that’s a pill our culture doesn’t want to swallow.

7

Stephen 07.29.19 at 7:10 pm

Belle: “we are to imagine a case in which some towering asshole of an ex is sharing sexual photos of me online in a huge, 30,000 man strong facebook group. And I don’t know this fact. A good 400 men are out there enjoying themselves on the back of this dehumanization at any given time”

Right, I absolutely agree with you, that in the worst case this should not happen.

But I can’t see that can be regarded as “dehumanization”. You are a woman and human, sexual photos of you might or might not be intolerable. I’m not sure what “sexual” means in that context, copulating?Naked? In a bikini? Fully dressed but still looking very desirable? Outside a burka?

Over to you.

8

Ben 07.29.19 at 7:22 pm

Ah the Illinois State Supreme Court. Acquaintance clerked there for awhile. One day his judge asked him “why do the emails sometimes not go through? It’s just a message from my computer to the other”, and so he got to do the Ted Stevens “the internet is NOT like a BIG TRUCK . . . it’s a SERIES of TUBES” thing in real life.

I googled a bit for revenge porn jury verdicts (safely behind a vpn; don’t google without it kids) and all the successful i.e. punitive or pain-n-suffering damage award cases involved men using it as a tool for blackmail, intimidation, or coercion. Unfortunately, the more this standard is written into the statues themselves, the more likely it is to be adopted as a social norm. “I didn’t do anything wrong, it’s not like I was blackmailing her.”

Also: notice this is another tearing of the social fabric due to big tech not wanting to hire human content moderators

9

Belle Waring 07.29.19 at 8:49 pm

“But I can’t see that can be regarded as “dehumanization”. You are a woman and human, sexual photos of you might or might not be intolerable. I’m not sure what “sexual” means in that context, copulating?Naked? In a bikini? Fully dressed but still looking very desirable? Outside a burka?”

Well it could be regarded as dehumanization if I feel dehumanized by the situation, surely. And just because I would (hypothetically) feel sexual photos of me to be intolerable when shared without my consent, it’s still possible for me to have felt them tolerable and consensual in the past at the point at which I was consenting, presumably when the photos were taken with the intention of sharing them solely with some sexual partner whom I trusted. Sure, I would say photos of me actually having sex is the worst, but naked is also bad, and in a bikini could potentially be the sort of thing one wouldn’t wish to share. Fully clothed, eh, not as bad, but still could be violating given the context. I find outside a burka as a hypothetical to be mildly insulting all around. In addition to which I think you are asking questions to which you know the answer. In addition to which you are invoking my natural human sexuality as some reason why I should theoretically find this situation more acceptable, which, and I hate to tell you this, is pretty darn mansplainy. This was one of the main problems with the previous thread; let’s all do our best to not repeat it.

10

J-D 07.29.19 at 9:36 pm

I am thinking now about the difference between the kind of law that says something roughly like

It is a crime to do X if you intend to have effect Y or effect Z.[end paragraph]

and the kind of law that says something roughly like

It is a crime to do X if you intend to have effect Y or effect Z and it is also a crime to do X if you are reckless of the effect.[end paragraph]

I imagine the difference between those kinds of texts would make a big difference in practice to prosecutions.

11

Belle Waring 07.29.19 at 10:44 pm

In semi-private illicit media sharing communities (which is the sort of site where this often but certainly not always occurs), in-kind contribution is often a currency to gain/retain access, and in any non-purely-anonymous group-sourced media community, in-kind contribution has value as social currency. It’s entirely reasonable to assume selfishness, callousness, and indifference towards the victim rather than malice are motivating some non-trivial portion of non-consensual porn publication.

If this is true then it’s just a massive defect in the law. In addition to which I think it’s hard to know for sure that it’s not the knowledge of how the victim would feel if she knew that adds the frisson to all the images generally which, combined with an insufficiently secure group (and how would it be perfect), may amount to just the same thing in the end.

12

Kiwanda 07.29.19 at 11:17 pm

The ACLU opposes criminalization bills like New York’s, in part because content-based speech restrictions are “presumptively invalid”. The ACLU says some such laws are overbroad, because “booksellers, photographers, publishers, and librarians — risk a felony record for publishing images fully protected by the First Amendment.”

(Also: please avoid the bigoted slur “mansplain”.)

13

Alan White 07.29.19 at 11:55 pm

My only contribution to your last thread–meant to be an amicus brief–is one I’ll repeat here for this issue. Agreeing with Orange Watch above, as a consequentialist I see the recent decades-long move away from the centrality of mens rea in law as an overall positive one for emphasizing the impact on victims. The more we can de-Kantize law and pro-Bethamize it, the better overall.

14

Orange Watch 07.30.19 at 12:38 am

bw@11:

it’s hard to know for sure that it’s not the knowledge of how the victim would feel if she knew that adds the frisson to all the images

This is of course true in many cases – the illicit origin of the photos adds to the taboo and/or makes something comparable to photos which are far more commonly available online more enticing because it’s forbidden. However, the frisson might be arising from fetishizing some other aspect – military pic sharing groups of course include plenty of people fetishizing the lack of consent and “taking those stuck-up bitches down a peg”, but some of the audience is just fetishistic of the uniform/military trappings/etc. And the ambiguity that’s created by these theoretical competing motives seems like ample ground for creating reasonable doubt as to a specific intent to harm – it’s more obvious in a specific case like the military groups, but in general there’s room to wedge in something resembling reasonable doubt and make the success of prosecution seem less viable. As per Ben@8, the courts don’t seem to be leaning towards presumption of harm, but rather demanding positive proof of it, and not by mere negligence.

Which… immediately makes me start thinking about slut shaming. As in, “since good girls don’t share porn (and we’ll ignore men, because of course we will), it’s just bad girls, who are really just getting what they wanted so long as they’re not being blackmailed or extorted, the sluts”. There are far better rationalizations offered by groups like the ACLU, but this sort of reasoning is what springs to mind for me, mostly because I see rhetorical parallels between how this is discussed and how certain online cesspools discuss the horrific tyranny of (*shudder*) positive consent SA laws, or even laws involving SA, intoxication, and consent. The insistence on an intent limitation (and there definitely is one) really feels like it’s trying to carve out a space for ‘sluts’ to still ‘get what they deserve’ while still affording some protection from unreasonable, excessive abuse.

I know that’s not the motivation behind the law’s intent clause, but it really feels that way and will almost certainly be viewed as vindicating such viewpoints in some quarters – and it’s hard to shake the feeling that there’s not some aspect of that involved. One article I read noted that while the ACLU offered rationales for advocating for an intent clause seem quite reasonable, they do not advocate such carve-outs in comparable areas like medical disclosures. It’s harmful and damaging – to career, reputation, whatever – for your medical records to be out of your control… but it’s not to have intimate photos or videos? Or is the difference that everyone – good and bad – has medical records, but only bad people (bad girls?) make porn? I can’t of course prove that’s the intent of including such a clause, but it certainly creates room for such an attitude to flourish.

15

Matt 07.30.19 at 12:56 am

Yeah, here it seems like the “intent” element of the crime should just be the intent to share the photo w/o permission (however that is determined.) This keeps it from being a strict liability crime. The intent to cause particular sorts of harm may well be reasonable as an aggravating factor, but it doesn’t seem like it should be part of the elements of the crime as such at all.

16

christian h. 07.30.19 at 2:29 am

You know what Alan Dershowitz would say: “Since we allow women to undress we MUST also allow posting their naked pictures without consent – not morally, but legally. I challenge you to find a constitutional distinction between the two.”

Meaning, my god is there a lot of highly credentialed dumbasses out there, no wonder we end up with crap laws. This is about porn – the origin of the “I know it when I see it” legal doctrine. It’s beyond absurd to then turn around and demand that the “revenge” part be precisely defined to avoid the hypothetical miscarriage of justice (“you honour, I posted this picture of my ex-wife in recognition of the innate beauty of the vagina”). Seriously, how about a “don’t publicly post porn without the subjects’ consent” as a perfectly satisfactory standard?

17

Belle Waring 07.30.19 at 2:37 am

“Also: please avoid the bigoted slur “mansplain””

Hmm, on reflection, no.

I am generally of the mind that the ACLU is reasonable, but this is an awful crime that laws must address; it’s worse than being stalked in some ways, since your employer may come to know of it (often directly) and there have been cases of women losing their jobs over it. It’s hard to know what to compare it to. Text taken from another without their permission, by contrast, is merely plagiarism. It’s not against the law to plagiarize in small amounts, though if I publish someone else’s book with my name on it I will see it taken from the shelves. But this is not what images published (and in many cases taken) without consent are like at all. It’s hard for me to imagine quite how well-meaning publishers will run afoul of laws prohibiting this sort of thing.

18

Faustusnotes 07.30.19 at 3:14 am

One of the articles in the Sokal 2 hoax last year discussed the issue of why it’s harmful to have people you don’t know sexually enjoying your pictures without consent. The right wing dickheads who wrote that article considered it to be a fake, an idea so preposterous that the very idea should obviously be ridiculous to any reasonable person. There are a lot of people in America who don’t understand consent, to the extent that they can’t even conceive that something like this causes harm. That presumably is why they have to stipulate that sharing images without your consent requires malicious intent to be harmful. Perhaps they all need to read that sokal “hoax” paper …

Incidentally I’m writing this comment from China, where I can view this site and comment. Lawyers, guns and money, however, has its comments disabled by the great firewall. I wonder why they think CT is less dangerous than LGM?

19

J-D 07.30.19 at 3:19 am

Kiwanda

Also: please avoid the bigoted slur “mansplain”.

I’ve never used that word, and I’ve never felt like using it, and it’s fairly likely that I never will feel like using it, but I’d still like to know why you’re suggesting that I shouldn’t use it (or why you’re suggesting that Belle Waring shouldn’t use it).

20

Faustusnotes 07.30.19 at 3:22 am

Oops sorry about the unclosed tag, HTML fail.

I think the “intent to blackmail” think could operate to change the sentence (since blackmailing you and dehumanizing you is worse than just dehumanizing you) but as a qualifier to a law it’s terrible.

21

Chetan Murthy 07.30.19 at 3:36 am

“Also: please avoid the bigoted slur “mansplain””

I hear that when naked pictures of men are posted online, they lose their jobs, their social circles shun them, sometimes their ejected from their churches, all manner of bad things descend on them. It’s very, very shaming.

22

Moz of Yarramulla 07.30.19 at 4:02 am

I feel the need to start with a caveat: I hate non-consensual porn with a passion, and revenge porn in particular. I just have misgivings about how this sort of law will be applied and to whom.

If my photo of someone committing rape is the rapists property and even my possession of it is an offence, does that really help the person who is raped? How do we allow for that possibility in a law criminalising non-consensual sharing of sexual photos?

rm@2:

“All participants in a photo/video must agree to post online”

Thereby outlawing not just photography in public places but making most negative media coverage impossible or illegal. And we haven’t even thought of the children yet! You really need the two carve-outs: no (reasonable) expectation of privacy in public places; and a public interest test. Otherwise you end up with things like youtube banning videos of war crimes and nazis for obvious reasons, but including videos complaining about or documenting war crimes and teaching how to identify and oppose nazis. Or facebook banning “female nipples” including breast-feeding and traditional (un)dress.

The sexual photos thing is much simpler than this, but again we need to be careful about making the existing problems worse – like registering children as sex offenders because they take photos of themselves (technically they should go to jail because production of child porn is a serious offence). Retroactive withdrawal of consent, reversing the onus of proof and inverting default ownership of copyright are not minor niggles invented by lawyers to oppress the innocent, they’re key defences for the innocent against the evil-minded.

23

J. Bogart 07.30.19 at 5:45 am

If you do not include some sort of mens rea element in the definition then you have problems with statutory limitations on consent, with the result that an underage sender of a photo to her boyfriend is guilty of a crime. Also, given the trend toward revision of statutes of limitations to commence on age of majority, family baby and childhood photo become potentially criminal when shared within the family. The central cases are not the only cases one should think about in connection with law. And as for making it all Benthmite, that would be a very great error. Removal of subjective standards of mens rea is one thing, making it all behaviourial only is something else entirely. My point, to be clear is that it is not only the central cases to be considered in assessing a law.

24

Rob 07.30.19 at 7:52 am

The Slate article says that the Internet Association lobbied for the “intent” provision, but then points out that the internet companies are already protected from legal liability for merely hosted user-posted images that turn out to have been posted illegally. Either the lobbying story doesn’t make sense, or there’s something else going on, and the author doesn’t seem to have asked what that might be.

My best guess is that the internet companies rely fairly heavily on users freely sharing the details of their lives with Big Brother each other and wish for them to continue to do so without fear that some part of this activity might turn out to be illegal. The message to users here is “as long as you’re not being intentionally harmful to someone else, you’re ok!”, which is certainly a helpful message if you’re a large social media company. “Think about the emotional consequences on the subjects of your images before you post”, in contrast, isn’t. Impulsive over-sharing is a big part of social media, after all.

There’s a tension here between the Internet Association’s arguments and the ACLU’s. The ACLU gives the example of teenagers impulsively sharing imagery. Maybe that’s teenage girls sending pictures to their boyfriends, who then share it with their friends, who then share it with absolutely everyone with an internet connection. The boyfriend would be the one at risk of criminalisation here, but it’s the internet companies that have spent a good few years building up the dopamine-hit association with tapping the “share” button in his mind. When the ACLU says that they’re afraid that he might be criminalised for acting “impulsively”, they really mean that he’ll be criminalised for doing what social media companies have spent years encouraging him to do with any exciting “content” he receives. If we’re being consequentialist here, then we can certainly acknowledge that the harm to the victim means a crime has happened irrespective of intent, but when allocating responsibility it might be that the person who tapped the share button isn’t the only one to blame (particularly when, like Snapchat, they specifically encourage the false belief that image sharing is somehow “private”). It seems like we can accept the ACLU’s argument only if we acknowledge that some mysterious factor is causing teenagers to impulsively share explicit imagery with each other, and that starts to put the social media companies in the frame, or at least close to it.

There really is a lot that the social media companies could do here for little effort. The same technology used to detect pornographic images could probably detect sexualised photographs, and users could be warned against sharing them (if you’re an adult performer in the business of sharing such things, you could turn the warnings off, I guess). Mandatory delays could be added, such as a 24-hour cooling-off period on image sharing, which would require a second confirmation before an explicit-seeming image is shared. Perhaps one could be required to confirm positively that one has the consent of the person in the image, or the legal right to distribute the image, before it’s shared? Obviously, the social media companies don’t want this, but this feels like a good way to both reduce harm and improve enforcement in cases where harm occurs anyway.

25

weirdnoise 07.30.19 at 8:50 am

Has the internet really corroded the right to privacy so far that it no longer exists? Why are social media companies so averse to the idea that photos of people — especially photos taken with an expectation of privacy — must only be posted after obtaining their consent?

Well, social media doesn’t work that way, because it hasn’t worked that way and it would be prohibitively expensive, and legally perilous, to enforce on existing platforms.
This is a conversation we should have had a long time ago, when such platforms were being built. It’s not like privacy is such a new concept.

26

Jon Davies 07.30.19 at 9:13 am

So what would be the amendment to the law that makes sense? In terms of photo sharing more widely it can be concerning for some that others take pictures and then share them on social media, tagging people who may not want their photo to be tagged or even shared. For many people this seems perfectly acceptable.

27

Alex SL 07.30.19 at 9:39 am

isn’t “without the victim’s consent” really just the end-all and be-all of this crime?

Eh, yes? Obviously? Or at least that’s how it should be?

I have a massive failure of voluntary suspension of disbelief when faced with people who even argue that such a law is or was needed, anywhere. How is this not automatically illegal based on the same reasoning that makes e.g. peeping toms and installing cameras in public showers illegal? Why do lawyers, judges and the police need this stuff to be made so specific instead of seeing it as obviously already covered?

(Same question in other cases: why are anti-terrorism laws needed when there are already laws against murder and conspiracy to murder?)

28

J. Bogart 07.30.19 at 10:57 am

It is not just the core cases that should be considered. The mens rea element is necessary (or at least very useful) for addressing the potential problems of age and time. A teenager is often not able to give consent to explicit photographs, but nevertheless is able to make them and send to a partner (boyfriend, girlfriend). That may get caught up if there is no mens rea element (and in fact such young women have been prosecuted under these statutes). Or consider the distribution to photographs of babies or small children within a family. (Another kind of case leading to investigation by prosecutors.). Or someone who buys a batch of old photographs and decides that some of them should be published and those photos are sexual (or erotic, if you prefer). That would be criminal. The crimes here may require registration as a sex offender and jail or prison time. Mens rea need not be determined on a subjective basis. But that is a discussion off the track a little.

29

J. Bogart 07.30.19 at 10:59 am

Oh — I see now there is moderation. (I thought I forgot to submit the first one.). Please, only publish one. The point does not warrant repetition and it makes no difference to me which is published. Sorry!

30

Locke 07.30.19 at 11:28 am

Since the hypothetical defense “I think she’s so beautiful” was given by Mary Anne Franks, who is listed as the first person to make such a revenge porn statue in Florida, I am going to assume (though Slate doesn’t say this) that she (likely) thinks that the NY law is lacking because it allows such a defense. I would be curious if Franks’ version allows such a defense; it sounds like the law was watered down to include the intent requirement – which implies the less-watered version didn’t include that.

31

Locke 07.30.19 at 11:38 am

I’m sorry, Mary Anne Franks is a professor *in* Florida (University of Miami). This law review article by Franks and Citron say that the first ‘revenge’ porn law was passed in New Jersey. According to that article (on quick glance), the statute does not appear to include intent to harm as a requirement. It says:

“An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other
reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.”

https://digitalcommons.law.umaryland.edu/fac_pubs/1420/

32

Locke 07.30.19 at 11:47 am

It seems that Franks and her sometimes co-author, Professor Diane Citron, differ on their views of what such a law should have. Franks apparently focuses mainly on the lack of consent, while Citron includes a reasonable expectation of privacy requirement.

From footnote 9 of this article (by another author, Andrew Koppelman, describing their views)
http://law.emory.edu/elj/content/volume-65/issue-3/articles/revenge-pornography-first-amendment-exceptions.html

“Citron, supra note 3, at 152. The first proposal for a statutory ban was by Mary Anne Franks, who proposed to focus not on the subject’s reasonable expectation of privacy, but on the absence of consent. See Mary Anne Franks, Why We Need a Federal Criminal Law Response to Revenge Porn, Concurring Opinions (Feb. 15, 2013), http://concurringopinions.com/archives/2013/02/why-we-need-a-federal-criminal-law-response-to-revenge-porn.html (prohibiting the disclosure of “a sexually graphic visual depiction of an individual without that individual’s consent”); Mary Anne Franks, Drafting an Effective “Revenge Porn” Law: A Guide for Legislators 9 (Aug. 17, 2015) (unpublished manuscript), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2468823 (prohibiting disclosure “when the actor knows that or consciously disregarded a substantial and unjustified risk that the depicted person has not consented to such disclosure”). Franks’s views on the drafting question have shifted over time, and at one point she considered language like Citron’s. See Mary Anne Franks, Combating Non-Consensual Pornography: A Working Paper 12 (Oct. 7, 2013) (unpublished manuscript), http://www.endrevengeporn.org/main_2013/wp-content/uploads/2013/10/Franks-NCP-Working-Paper-10.7.pdf (“Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime.”).
I worry that Franks’s statute may be overbroad. There are many situations in which it is reasonable to disseminate a nude photograph even though the disseminator knows that the depicted person has not consented to the disclosure. The person may have originally disclosed the photograph with the expectation that it be public and available for reposting, as when one posts a nude photo of oneself onto a publicly accessible website. The person may have had no reasonable expectation that the image would be kept private. The person may not know of the dissemination. The photo may be newsworthy, like the Abu Ghraib photos. The person may have died before the photo was distributed: some nude photos are more than a century old.
There are likewise reasonable objections to Citron’s language, which has problems of vagueness (which is what draws Franks to the language of consent), but I bracket them here. The conversation about appropriate drafting is a continuing one and this Article does not attempt to resolve it.”

33

Lynne 07.30.19 at 11:49 am

Even if you are a judge, photos shared without your consent can ruin you.

https://www.cbc.ca/news/canada/manitoba/former-manitoba-judge-compares-disciplinary-hearing-to-torture-1.3390836

34

Locke 07.30.19 at 11:51 am

(Above quoted commentary at end of last post is by linked to law review by Kuperman, not me).

35

Belle Waring 07.30.19 at 12:29 pm

I wonder why they think CT is less dangerous than LGM?

Our combined score on that Xi Jinping app is insane.

36

Belle Waring 07.30.19 at 12:50 pm

Also, we don’t post so consistency and frequently on labor conditions and human rights for workers.

37

Locke 07.30.19 at 12:56 pm

(More philosophically and less about law): There’s many ways to dehumanize and deny dignity. Not all of these need involve intent to harm. One way is to *not count* a person as mattering, as when one treats them like an object and not as person, as for example, when one does not think about the harm caused to that person or doesn’t care or factor in whether that person is harmed or wronged. So even if so one passes around photos without any intent to humiliate, this can be very dehumanizing – not just in the sense of harming the person, but also in the sense of not considering the person as a human worthy of respect.

38

Belle Waring 07.30.19 at 1:22 pm

Maybe that’s teenage girls sending pictures to their boyfriends, who then share it with their friends, who then share it with absolutely everyone with an internet connection. The boyfriend would be the one at risk of criminalisation here…

Bizarrely this isn’t so, and the girl is also on the hook for producing child pornography, and if they take consensual photos of one another they are both on the hook for creating child pornography. This is obviously stupid. In the case of the boy who then shares the photos with all his friends, and they with all the school, the ordinary revenge porn law is sufficient and it doesn’t seem to me that the child pornography angle needs to come in at all (and in any case that law is ill-conceived and deserves to be repealed.)

39

Faustusnotes 07.30.19 at 3:45 pm

Yes Belle, the labor rights thing could be an issue but actually most people I speak to here are really proud of chinas labour rights and the supply chain stuff is more for the rest of south east Asia than China, now. (I saw an article in the guardian the other day that observed that the Chinese govt had forced unions into Walmart as a condition of operating in China – us workers should so lucky). I wonder if the issue is more Farley, who sometimes writes about China’s defense policy.

Last time I was here blogs were blocked but news sites were not – this time it seems more the opposite.

On social media and consent, who puts a photo of other people up in a social media site without asking!? That’s dirty!

40

Belle Waring 07.30.19 at 4:16 pm

“So even if so one passes around photos without any intent to humiliate, this can be very dehumanizing – not just in the sense of harming the person, but also in the sense of not considering the person as a human worthy of respect.”

This is certainly why I would find it dehumanizing, even if I didn’t know about it till some later moment. Actual physical sexual assault is importantly the same thing: treating the person as an object with which to be gratified rather than a person with their own interiority who deserves respect and dignity. I would say many assaulters/rapists have enough knowledge of the other person’s interior life to manipulate them successfully, enough disregard for them as a human being as not to care about harming them.

41

Orange Watch 07.30.19 at 4:54 pm

fn@17:

Non-funny answer: LGM comments are run through Disqus, while CT has something local to the blog. Disqus, like many web apps relating to social networking and information sharing, is blocked.

42

Trader Joe 07.30.19 at 6:54 pm

I’ve been trying to understand via comments whether the core objection is the pornography or the posting without permission. Comments seem scattered about which is really the issue. With respect to posting without consent generally, while some might disagree, its all but impossible to legally enforce or prevent.

If a person takes a picture of the local high school football team amid a humiliating defeat and posts it all over every social media available, it might embarrass the members of the team but they have no reason to expect protection nor should their consent be required….even if I’m a fan of the opposing team and its 100% my intent to humiliate them by how poorly they played and I say as much in my related comments.

If the same person posts a picture of the team in the locker room after the game and happens to catch a couple of players in the background improperly covered up exiting the shower, its also embarrassing and probably should not have been posted without consent, but its probably not pornographic in most senses of the word.

If the same photographer posts the quarterback getting it on with his wide receiver and a couple of cheerleaders cheering them on its also embarrassing, and we’ll presume pornographic, and potentially revenge porn as defined. Surely if they didn’t know the picture was taken, they’d have an abundance of rights. But if they did and didn’t object to the photo being taken it does start to become a question of what was the intent, when and how do you obtain consent and is really consent all that matters – maybe there should be no cases where its acceptable to post to widely available sites.

How do you write a law that says the first is o.k., the second might be o.k. and the third probably shouldn’t be?

To coin the old phrase, I pretty well know pornography when I see it but definitions across many people will vary and I really don’t like the idea of some crusty 70 year old white male judge being the one to draw the lines.

43

Belle Waring 07.30.19 at 8:24 pm

the posting without permission

yes

44

Belle Waring 07.30.19 at 8:41 pm

But if they did and didn’t object to the photo being taken it does start to become a question of what was the intent, when and how do you obtain consent and is really consent all that matters
yes

More Equally seriously, you can give consent for a photograph of you double-teaming the kicker and wide receiver, and then withdraw consent when it comes to doing anything other with the photo than the people involved enjoying it. Because consent is a thing which can be withdrawn. JUST LIKE WHEN YOU CONSENT TO SEX BUT THEN WANT TO STOP FOR SOME REASON OR, INDEED, NO REASON. AND THEN IT’S RAPE, PUBLIC SERVICE ANNOUNCEMENT. If there is a concept that a crusty 70 year old white judge has trouble comprehending it is the possibility that consent can be withdrawn. Or that consent is a thing, at all. Or that women have sexual agency. Or a bunch of stuff along these lines.

The problem emphatically doesn’t lie on the ‘is it pornography’ end, since the point of a law such as this is, rather, to allow victims to sue to get images removed. At some level you have to trust the victims on whether the images are dehumanizing and humiliating. This will be overwhelmingly women, and you’re just going to have to trust them, this seems very hard sometimes. And then, it is so hard for women to get anyone to take cases of this kind seriously at all that I wouldn’t start worrying about edge cases pushed the other way until something at all happens on that front. No one likes to put their trust in prosecutorial discretion, but we can trust their general aversion to enforcing laws of this kind. This is why I never reported my stalker, because what was the point? He had the right to use the library, and to walk on campus. I was morally certain it would be a lot of hassle about nothing, and only useful for the prosecution after I got murdered.

45

Witt 07.30.19 at 8:46 pm

Belle, I have nothing to add to this thread except to express my appreciation for your willingness to once again push an audience that doesn’t think about these things as rigorously and humanely as we might all hope to be better.

Oh, I do have one thing to add. While I agree that abuse of prosecutorial discretion can be a problem, I’m continually amazed by some people’s unwillingness to grasp the basic point that context matters and that the historical context of women and other marginalized people routinely having their humanity ignored IS RELEVANT to this discussion.

Violations of consent don’t happen randomly. They happen to people who the perpetrator already knows matter less than he/she does.

46

Belle Waring 07.30.19 at 9:17 pm

Thanks Witt. Sometimes I think, hey, I should post on CT more, it’s fun and also I owe it to the blog! And then other times I think, Christ, what assholes. Granted I’m a masochist, but not in this particular way. Mmm, that has to be wrong or I wouldn’t let anyone comment. Masochism all round.

NB: each commenter above, I don’t mean you personally. My last thread was terrible. This is…OK.

But don’t worry too much about what you would find overly revealing/pornographic. Just let the victim decide for you! And don’t worry too much about what should be the deciding point making some picture a violation of the law: let the victim say whether she consented to have it shared online! And don’t worry too much about whether you’ll be able to figure out whether she consented at first, and then removed consent, or what. Just let the victim tell you! Easy peasy.

47

SamChevre 07.30.19 at 9:29 pm

don’t worry too much about what should be the deciding point making some picture a violation of the law: let the victim say whether she consented to have it shared online!

I think that without some limiting principles, this rapidly causes as many problems as it solves.

I might not want it publicly known that I cheated my employees, or that I was a proud supporter of the local White Citizens Council, or that I used to run a gay bar, or that I used to aggressively picket a gay bar and was frequently arrested for starting altercations with the patrons, or that I have multiple domestic violence convictions, or any number of other things. But saying that I don’t consent to having that information about me publicized doesn’t mean no one else can publicize it-and in my opinion, that’s a good thing, whether it includes pictures or not.

Maybe some standard like that for classified information–you don’t possess it with the right to distribute it, but if you acquire it you can do what you want even if the person who gave it to you can be prosecuted for giving it to you? But saying “no information about me that I don’t currently consent to can be published” seems to me to go too far.

48

hix 07.30.19 at 10:04 pm

Somehow photos from chearleader orgies dont seem the right place to think about nuances. Getting a signature explicity alowing publication from everyone before posting them to the public isnt much to aks for in that case.

49

Orange Watch 07.30.19 at 10:38 pm

the point of a law such as this is, rather, to allow victims to sue to get images removed.

Nitpick: this is part of the point, but the law also establishes criminal sanctions. So while it expands the civil code to establish and/or clarify the possibility of civil relief in these matters, it also codifies crimes arising from those same matters.

50

Belle Waring 07.30.19 at 11:21 pm

while it expands the civil code to establish and/or clarify the possibility of civil relief in these matters, it also codifies crimes arising from those same matters.

great

51

Kiwanda 07.30.19 at 11:45 pm

At some level you have to trust the victims on whether the images are dehumanizing and humiliating. This will be overwhelmingly women,…

Not that it really matters, but: according to a 2017 Pew Research study, of those asked about “explicit images of themselves shared without their consent”, 6% of women reported this, 7% of men, 12% of women 18-29 years old, 14% of men 18-29.

“Trust the victims” assumes the conclusion.

Why are social media companies so averse to the idea that photos of people — especially photos taken with an expectation of privacy — must only be posted after obtaining their consent?

Does that consent requirement include cops beating a suspect? The neoprene-gloved torturer at Abu Ghraib? The Antifa assaulter of Andy Ngo? Dead people? People in the background of a tourist photo? People at a big rowdy party? People at a small rowdy party?

Rob:

There really is a lot that the social media companies could do here for little effort.

Apparently Instagram, Twitter, Reddit, Tumblr, Yahoo, Google, and Microsoft have report and removal mechanisms in place. Also, explicit selfies have copyright owned by the self, and so can be removed under (gods help us) the DMCA.

(J-D:

…I’d still like to know why you’re suggesting that I shouldn’t use it (or why you’re suggesting that Belle Waring shouldn’t use it).

Belle Waring used it. Are you asking why I might request that bigoted slurs not be used?)

52

Belle Waring 07.31.19 at 1:23 am

Thanks Kiwanda, that’s interesting and also not what I would have expected from nearly every case I’ve read about. Whoever is a victim of this crime enjoys the same redress and protection as any other victim.

also, no, and it doesn’t really make sense to say I am bigoted against men

53

Moz of Yarramulla 07.31.19 at 1:37 am

I suspect part of the issue is that the framing here is very prudish and focuses on one of the parts of US society that is extremely gender-biased, so it’s hard to discuss the general legal principles (if any exist) outside of the specifically US social and legal context. The problem is that the US has a habit of vigorously exporting its laws as well as its culture (witness the decline of topless sunbathing in France, for example) regardless of any local context – the lack of rights that citizens in countries like Australia have for example, or the reduced sexism that makes the above discussion seem medieval in my context (you may have seen erotic images of our former prime minister wearing ‘speedos’ and little else).

I think erring on the side of specifics is probably better. It should be non-criminalisable if someone has permission to publish images at the time of publication, for example. If they can be withdrawn (by dispatching flying pigs to destroy every copy, for example*) then perhaps later deconsent could be allowed, but who pays for that is a tricky question. Simply taking the original image off the OPs public media feed is almost always irrelevant.

A big part of the problem is that “sexual image” is as much in the eye of the beholder (baby photos, foot fetishes, the crossover between glamour/soft pron/advertising) as the eye of the subject (all the celebrity nudes, the nude calendar thing, PETA and FEMEN protests etc).

Making this stuff purely civil reduces the opportunities for corrupt law enforcement to target their usual victims (like the US habit of extra-judicial execution of black men), but greatly increases the costs of enforcement, making it strictly the preserve of the well-off.

* recall the recent example of terrorist body-cam footage that was impossible to suppress, for example, and the Streisand Effect.

54

Saurs 07.31.19 at 3:23 am

I would say many assaulters/rapists have enough knowledge of the other person’s interior life to manipulate them successfully, enough disregard for them as a human being as not to care about harming them.

Indeed, although, as you say, it cuts both ways. Part of the fun to be had by abusers of all stripes is the knowledge (mixed with realistic fantasy) of what irreparable harm you can continue to do, almost to nauseam as it were, to that interior life, even years after the “actual” abuse is over. Which is precisely why the mere threat of revenge porn is so terrorizing, to the point that it elicits submission to further, more “private,” “in-person” abuse (sexual, financial, et al) in order that the victim can spare herself that kind of public wrecking-ball. Cf, by way of example, revenge porn by proxy, or, perhaps revenge porn as genre. There are no spurned lovers, and the intent was always to mislead, to present a fantasy of a naïf deceived and, lo and behold, actually deliver that deception to their viewers. Purely for the lols and wanks, which are, of course, very sacred, particularly when taken together. Indelible in the hippocampus, if you will.

55

Faustusnotes 07.31.19 at 4:07 am

I guess you could interpret the behavior of the judge as setting a kind of EULA on sexting. So now in America (or this state?) when you give your consent to a “private” picture you are also giving up all future rights to the use of the picture and can not control its use except where it is obviously maliciously being used against you.

That’s pretty shit! But it’s what you can expect when old white men and conservatives write the EULA…

56

Chetan Murthy 07.31.19 at 4:31 am

SamChevre @ 47:

You adduce a bunch of examples where, you argue, it’s more problematic to let the “victim” decide what can and cannot be publicized. But ….. you’re missing the POINT. Which is that the way in which women and children (and, let’s be honest, closeted straight men who are outed via pics of their sex acts with other men) are victimized has NOTHING TO DO with your examples.

It’s like you can’t see that there isn’t some useful yet more general category into which these particulate cited offenses can be reasonably included.

So maybe stop trying?

It’s like how some people argue that women make less money than men because they -choose- to spend time on domestic work. Ignoring that without women “choosing” to do that, all of human society would simply stop. B/c who the hell is going to raise the kids? really? The way that women and children experience the world is different from the way that men experience it. Really, stop trying to analyze it and come up with some over-arching framework that reconciles it, and maybe start -accepting- that difference. Because as a male, we’re not going to understand it — we can’t walk a mile in their shoes, FFS.

And then Ms. Waring’s “At some level you have to trust the victims” will make more sense.

57

Chetan Murthy 07.31.19 at 4:32 am

In my last comment, I wrote “closeted straight men” when I meant “closeted gay men”.

58

Rob 07.31.19 at 7:33 am

Chetan Murthy @ 56:

You adduce a bunch of examples where, you argue, it’s more problematic to let the “victim” decide what can and cannot be publicized. But ….. you’re missing the POINT. Which is that the way in which women and children (and, let’s be honest, closeted straight men who are outed via pics of their sex acts with other men) are victimized has NOTHING TO DO with your examples.

It depends on what we’re trying to discuss. Is it the moral rights and wrongs of our preferred examples, or is it the law? The law applies to both, and therefore you have to consider both. I know that Sam’s examples are obviously not what revenge porn laws are intended to address, but a suggestion like “the subject of the photograph should always have to consent to it being shared” really is overly broad, and Sam demonstrates this by showing examples where this rule would be undesirable.

The reason these kinds of threads attract nit-picky legalistic arguments is because they’re about the law, and you have to be nit-picky and legalistic when drafting laws, as you can expect prosecutors, defendants, lawyers and judges to be nit-picky and legalistic in their interpretation of the law later on. I’m not sure that this makes for great internet comment threads though.

Moz @ 53:

Making this stuff purely civil reduces the opportunities for corrupt law enforcement to target their usual victims (like the US habit of extra-judicial execution of black men), but greatly increases the costs of enforcement, making it strictly the preserve of the well-off.

Tech platforms could make civil enforcement easier. Anyone posting to a social media platform has signed a contract with the platform (even if it’s a click-wrap EULA). This could include a binding arbitration/dispute resolution clause that could allow for highly expedited procedures, where simple rules could be enforced: is the complainant in the picture? Is the image of a sexual nature? Can the respondent demonstrate that consent was given? These are simple questions that could be resolved by something like “early neutral evaluation”. There’s then a more difficult question of damages, but if you have a preliminary judgement on the facts then it’d be easy to get a lawyer to work for a percentage of the damages if they’re highly confident that they’ll win the case. (I appreciate that we have now descended into technical problem-solving, which is even worse than legal nit-picking).

59

J-D 07.31.19 at 9:53 am

Kiwanda

…I’d still like to know why you’re suggesting that I shouldn’t use it (or why you’re suggesting that Belle Waring shouldn’t use it).

Belle Waring used it. Are you asking why I might request that bigoted slurs not be used?

If you put it that way, I guess what I’m asking for might be your explanation for suggesting that bigoted slurs not be used in conjunction with your explanation of how ‘mansplain’ is a bigoted slur.

60

J-D 07.31.19 at 10:03 am

SamChevre

A law which banned me from making public photographs would have no application to, and no effect in, a scenario in which I made public associated information, including the fact that I was in possession of photographic evidence to confirm my assertions, so long as I didn’t actually make public the photographic image itself.

For example, a law which banned me from making public a photograph of a sexualised image of, for example, Belle Waring would have no application to and no effect in a scenario in which I made a public announcement to the effect that I was in possession of such a photograph.

Likewise, a law which banned me from making public a photograph showing, for example, you operating and/or picketing a gay bar would have no application to and no effect in a scenario in which I made a public announcement to the effect that I was in possession of such a photograph.

So any concern that legal restrictions on the use of photographic images would limit the dissemination of information is misconceived.

61

Matt 07.31.19 at 10:52 am

A lot of comments on this post are surprising and depressing to me. For one, people acting like if the things at issue here (distributing nude photos of people here without their consent) are, in relevant ways similar to posting other possibly embarrassing information about people, are either amazingly ignorant about how law works, or are being stupid. Law draws bright lines all the time even if we can blur them in theory. Don’t be so stupid. Second, people acting like this is some sort of US specific thing are being idiots. The problem is common, and it’s not a US specific thing either in the US being especially puritanical (there is nothing puritanical about not wanting people to share nude photos of you all over the internet!) or otherwise. See, for example, this completely reasonable somewhat similar law in the UK: https://www.vice.com/en_us/article/59vnek/upskirt-activist-gina-martin-campaign-illegal Finally, some people are posting rather stupid claims about intent, proof, etc. The current law in NY is too lenient on that. As I’d noted above, the relevant intent is the intent to share a photo of someone that one has no authorization to share. How do you avoid that? Don’t share a photo if you don’t have authorization! This is not a hard issue! Maybe it’s reasonable to make a distinction between people who knowingly do this and people who merely recklessly do it, but even if we do that, there is literally no significant worry here.

Any law, of course, can be better or worse written and enforced. It’s worth thinking about those things here, as with all laws. But a lot of the commentary here has been amazing, in the amazingly bad sense. Really, people, this is not a super hard or tricky issue.

62

Belle Waring 07.31.19 at 1:25 pm

not sure that this makes for great internet comment threads though

no

63

Belle Waring 07.31.19 at 1:28 pm

For example, a law which banned me from making public a photograph of a sexualised image of, for example, Belle Waring would have no application to and no effect in a scenario in which I made a public announcement to the effect that I was in possession of such a photograph.

might I ask whether this is really called-for. seriously

64

Belle Waring 07.31.19 at 1:30 pm

Separately, what? Just bare assertions about hypothetical photos aren’t prevented by laws aimed at the distribution of genuine images? I mean, no?

Also, Matt is right about the issue, and that “a lot of the commentary here has been amazing, in the amazingly bad sense. Really, people, this is not a super hard or tricky issue.”

Everyone remind me why I’m posting later today, maybe.

65

Rob 07.31.19 at 2:44 pm

Matt:

Don’t share a photo if you don’t have authorization! This is not a hard issue!

Is this intended to apply to all photographs, or just photographs where there’s some harm to the subject as a result of the photograph being posted, or just photographs of an intimate/sexual nature (“porn”)? I’m only asking because it’s not explicit and this does seem to be what a few people are getting caught up on. (If it’s the third option, then I think you’re uncontroversially correct, fwiw).

66

Belle Waring 07.31.19 at 3:21 pm

A closeted gay man who has a picture of him kissing another man publicized should have recourse under this law as I think the contact is sufficiently sexual and the non-consensual (eyes on the prize people) sharing of the image sufficiently motivated by spite/a desire to cause serious harm. In addition to which the context is clearly one in which a member of a minority group is being targeted based on his being part of the group (whether he wishes to make it widely known or not isn’t relevant here.)

Pornographic images of some more seriously violating type are indeed what people are talking about and are, I hope rather obviously unacceptable. So much so that I wonder once again why the thread is full of people who are, by default, defending non-consensual sharing of sexual images on the grounds that it’s just too hard to figure out whether someone consented. WHEN IN FACT IT’S RATHER SIMPLE AS YOU JUST ASK THE PERSON. And this is the very thing I asked you not to do at the end of the post. Think just a tiny bit harder about what you are doing, and don’t make hypotheticals about having compromising photos of me because wtf man. I may just need to nuke that comment from orbit.

67

Chetan Murthy 07.31.19 at 5:47 pm

Rob @ 58:

The reason these kinds of threads attract nit-picky legalistic arguments is because they’re about the law, and you have to be nit-picky and legalistic when drafting laws

Which is why it’s so useful to conflate examples involving women/children/gay-men, with examples that don’t involve those categories.

It’s like that Anatole France line about rich/poor/bridges/sleeping, sigh.

68

Kiwanda 07.31.19 at 6:14 pm

Ah, meta-discussion, how boring and yet how inevitable. I know I shouldn’t, and yet.

Matt:

But a lot of the commentary here has been amazing, in the amazingly bad sense. Really, people, this is not a super hard or tricky issue.

Which commentary? How?

If the ACLU disagrees with e.g. Belle, they’re not necessarily right, but it at least suggests that the issues and edge cases are not as obvious as you think.

Belle Waring

…why the thread is full of people who are, by default, defending non-consensual sharing of sexual images…

Is it? Who is actually defending the non-consensual sharing of sexual images?

Would you really prefer a thread of “Yes, Belle, how right you are! Any right-thinking person would 100% agree with you on the obvious solution!”? I guess you can have that, it’s your party.

69

Witt 07.31.19 at 6:16 pm

PSA to anyone who might want to use a hypothetical example in a discussion involving painful and sensitive topics:

1) Don’t use a real person.

2) If you MUST use a real person, use yourself.

3) See Rule #1.

70

Belle Waring 07.31.19 at 7:51 pm

Would you really prefer a thread of “Yes, Belle, how right you are! Any right-thinking person would 100% agree with you on the obvious solution!”? I guess you can have that, it’s your party.

yes obviously that’s why I let comments through that drastically disagree with me wow it’s so clear I want uniform agreement with me thanks for pointing it out my party is going to be so great now

71

Moz of Yarramulla 07.31.19 at 9:10 pm

I keep wondering what this law would look like, and how it would operate. Let’s take the “sexual photos are always obviously so and the definition is uncontroversial” part as read, and define “consent” in this situation. That seems to be the actual area of contention.

If we simply criminalise “displaying a sexual image in a public space where the consent of all persons depicted therein has not been obtained” would that satisfy Belle?

Clearly not, since she requires the ability to retroactively withdraw that consent, and that private circulation be covered.

So we add “including sharing such an image with anyone, or allowing such images to remain available to any person after consent has been withdrawn”.

Cool. Now imagine that video exists of me cavorting naked on a public beach. For the sake of argument imagine that this video also features a number of naked women. Imagine we all consented to having this video made, and to it’s broadcast on national television. Perhaps even imagine we were paid for appearing in said video.

How does this proposed law affect the ability of “The Chaser” to have made an episode featuring “incidental nudists” ten years ago? Asking for a friend.

72

J-D 07.31.19 at 9:18 pm

Witt

You are, of course, correct. I apologise.

I did think after I’d posted my comment that I had erred constructing my examples. Sometimes I struggle constructing examples, and in this case I was too slow to figure out a suitable one. I did put myself in the example, but having put myself in the wrong place couldn’t fix it up.

My fault. Sorry.

I would have done better to write the following comment, mentioning no real people other than myself.

A law which banned people from making public photographs would have no application to, and no effect in, a scenario in which they made public associated information, including the fact that they were in possession of photographic evidence to confirm their assertions, so long as they didn’t actually make public the photographic image itself.

For example, a law which banned people from making public a photograph of a sexualised image of, for example, me would have no application to and no effect in a scenario in which people made a public announcement to the effect that they were in possession of such a photograph.

Likewise, a law which banned people from making public a photograph showing, for example, me operating and/or picketing a gay bar would have no application to and no effect in a scenario in which people made a public announcement to the effect that they were in possession of such a photograph.

So any concern that legal restrictions on the use of photographic images would limit the dissemination of information is misconceived.

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Belle Waring 08.01.19 at 12:10 am

Clearly not, since she requires the ability to retroactively withdraw that consent, and that private circulation be covered.

People are so confused about this, apparently. I’m not talking about you signing a legal document assenting to public distribution for a sexual image and then saying, “sike! I’m sending you to jail.” Rather, I’m just saying that you may consent to have images of you taken, and consent to them being shared among three specific people, but then withdraw consent when you learn that one of the three is sharing them online, withdrawing consent even from him despite the fact that you initially gave him the right to have the image. Additionally, you may withdraw consent for some other reason such as cooling towards these people, or no reason, and the people are obliged to abide by your wishes. JFC this is not hard.

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Chetan Murthy 08.01.19 at 12:15 am

I do wonder sometimes about these people who seem to argue for facially equal treatment of classes of people who are intrinsically different, and upon whom the same treatment imposes wildly different effects, and for reasons that are out of the control of the people affected. Reading this comment thread, I thought about Andrea Dworkin, and her arguments that pornography, merely by its existence/consumption by men, harms women. And then the same can be said about sex-bots: that the ways in which they enable deviant sexual behaviour by men (practice on the robot, then move on to real women).

Sigh.

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Belle Waring 08.01.19 at 12:36 am

J-D. Bruh. Apologize to me, not Witt (you may naturally also agree with her.)

54: “Indeed, although, as you say, it cuts both ways. Part of the fun to be had by abusers of all stripes is the knowledge (mixed with realistic fantasy) of what irreparable harm you can continue to do, almost to nauseam as it were, to that interior life, even years after the “actual” abuse is over.”

Saurs when did you meet my stepdad.

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Moz of Yarramulla 08.01.19 at 12:37 am

Belle, my disagreement isn’t over whether (some of) this stuff is wrong, morally or even legally. It’s over how we get a law making anything other than extreme cases into crimes without making a whole lot of desirable things illegal too. “I have nudes, obey me or else” is already illegal, “I shared photos you gave me because you said I could” is already legal, and the “but only to three people” is already a silly thing to imagine (“two people can keep a secret…”).

There’s a major conflict between “not… signing a legal document assenting to public distribution” and your need for criminal sanctions. There’s also a gulf between “obliged to assent to my wishes” and “or go to jail” (viz, what criminal sanctions mean for those too poor to buy their way out of jail). I might have a moral obligation to delete images on request, but it’s impossible for me to prove I’ve done so*, so making it a crime not to prove that seems unreasonable. But allowing me to say “sure, I deleted them” as a defence seems pointless.

Do you accept that un-sharing the images isn’t possible? That the purpose of the process is to deter others, since the actual problem can’t be undone? So the retroactive withdrawal of consent really just makes a crime where the person who might be going to have committed it has no control over whether the crime exists? It’s very much a consequentialist law – I can share images now, but if the subject later decides they don’t like what happens as a result of what they agreed to they can turn my participation in their consent into a crime.

I’ve worked with and around various places where revealing images are made, as well as being an amateur both making and modelling for them. The nice simple bright lines you seem to imagine seem blurry and difficult to me. If I’m doing a bit of life modelling I need photos to send to potential clients, but why would I pay for those when someone will pay me to be allowed to take them? Or maybe I do a contra deal, where I get copyright to some photos and the photographer gets copyright to others. But then it turns out that somehow those photos have ended up online and now the porn fans have them. Who’s liable? How do I prove it?

This article might help you understand the problems with “complainant has to prove she meets the requirements of the law” once we get into proving that no payment was made (for example). It really is just like most other sexual crimes, where the systems we currently have are set up to make life hell for complainants in order to spare the legal system the hassle of prosecuting them:
https://www.theguardian.com/commentisfree/2019/jul/31/sexual-assault-case-dropped-phone-traumatic

* I can delete a copy in front of witnesses, but that doesn’t prove that there’s not a micro SD card with a copy of them hidden somewhere, or just a zip file uploaded somewhere.

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Moz of Yarramulla 08.01.19 at 12:50 am

Rob@58: seriously? I just gave you an example of a situation where a number of different social media companies tried really really hard to suppress a single specific video and they all failed dismally. Their users had all agreed to a EULA that forbids sharing that video.

The point is not that the legal system, the media companies and so on don’t want to suppress selected content and we just need to change their minds, it’s that what we have now *can’t* suppress content. The sodding Chinese government with their “magic Chinese internet” and literal armies of censors can’t do it, the only solution we’ve seen is shutting down telecommunications in a whole country.

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Witt 08.01.19 at 2:23 am

Second PSA to J-D and anyone else (including myself) who may need it in the future:

If you have wronged someone and you realize it, apologize. Apologies consist of:

1) Acknowledgement of your error.
2) Specific acknowledgement of why (to the best of your understanding) your error was hurtful.
3) Commitment not to reproduce your error in the future.
4) Brief explanation (if appropriate) of how you will avoid reproducing your error.

To me, when a person generously makes themselves vulnerable in service to discussion on a fraught but socially vital topic — as Belle did — it imposes a particular responsibility among all of us who chose to participate in the discussion not to violate the trust she has placed in us.

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Belle Waring 08.01.19 at 12:56 pm

“Do you accept that un-sharing the images isn’t possible? That the purpose of the process is to deter others, since the actual problem can’t be undone? So the retroactive withdrawal of consent really just makes a crime where the person who might be going to have committed it has no control over whether the crime exists? It’s very much a consequentialist law – I can share images now, but if the subject later decides they don’t like what happens as a result of what they agreed to they can turn my participation in their consent into a crime.”

Obviously it’s impossible to retrieve images from 4chan, particularly in the event that you have already made a humorous meme template out of them. This is actually a good reason why it should be illegal to share nudes of someone when it is even potentially against their will, not an argument as to why you should never be prosecuted for it. Sharing among three other people isn’t crazy if you and those other people participated in a mutually consensual series of sex acts while one acted as photographer, all with the agreement you will keep the resulting photos to themselves. You might think this is dumb because three can’t keep a secret etc., but everyone involved in the Fappening thought the women whose nudes were stored in the cloud were so dumb that they “deserved” to get hacked and have their photos plastered wall to wall across the internet. ‘She was dumb to trust him/them’ is emphatically not a good defense against the charge ‘he uploaded an image of me having sex to the internet, either with the intent to humiliate me, or for sexual gratification, or because otherwise he couldn’t get photos of other unwilling women from some group’ (and as I’ve said, I find these groups blurry enough as to none of them providing a good defense.)

Everyone seems to regard my withdrawal of consent notion as troublesome in some way. When are you likely to withdraw consent from someone’s possession of your nudes? Precisely at the point that the other person uploads them to some sleazy reddit board, right? This is neither complicated, nor difficult to understand. Am I, the sharer of the images, now on the hook for legal troubles because the person in the photo objects to me doing this with the photos, when they were fine with me having them myself to enjoy, even though this involves withdrawal of consent? Yes, sure! If I am a professional model I have already signed some agreement about distribution. If I work in the sex industry I can, myself, share photos of myself. If I am an amateur model, I think the presumption should always be that I do not want my photos shared online. Thus, absent written permission, no one will do it, and that will be great [hypothetically; in fact people commit crimes]. Would it be salutary if the government were to repeatedly come down like a ton of bricks on men doing this, pour encourager les autres, even though you can never get the pictures erased from that unerasable place, the internet? Yes! Finally, that the images can’t be un-shared is not in principle different from every other sex crime (I grant there is a continuing harm element, but this makes it worse, not less serious). You don’t un-rape rape victims. Arresting someone’s stalker doesn’t undo their fears and make them not have been stalked. Even from God this power alone is reserved, to change what is past, as Aristotle says.

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Matt 08.01.19 at 1:19 pm

Everyone seems to regard my withdrawal of consent notion as troublesome in some way.

This seemed fairly straight forward to me, so I wondered if I was misunderstanding. It does seem like there are two (or three) possible ideas here. Here’s one: I give you a nude picture of me. Obviously, I’ve consented to you having it, because I gave it to you. But, have I given my consent to you sharing it more widely? No, at least not obviously. My understanding of the law in most places right now is that, in this scenario, if you share the picture, even though you know (or should have known) that have not consented to its distribution, I have no legal recourse. But, this could (and probably should) be changed. This cases seems to me – a lawyer, among other things – to be a pretty straight forward case, and not an especially troublesome law. (Note that there being three or four people in the scenario doesn’t change it in any interesting way.)

Second scenario: I give you a nude photo of me, and you ask if you can share it. I say, “Sure, why not?” But then, after a bit of time, I re-think this, and decide I want to withdraw my consent. This is a trickier case, because now the photo is around, and people who have received it may have no good reason to know that consent wasn’t given. So, should they be liable, if they further distribute the photo after I have withdrawn my consent? It’s less obvious that they should, but we can still imagine setting up a legal regime where there is a strong default rule that such images cannot be shared unless you have actual knowledge of consent to share them, or at least if you act without this knowledge, you are taking on the risk of liability if in fact there is no consent. (We might think of it a bit like the risk of being liable for possession of stolen property.) I’m less sure that such a legal regime is desirable, but also not sure that it’s undesirable. It’s certainly possible, though.

A final scenario would be one where a person has received material benefit in exchange for agreeing to make the photo sharable – money, usually. Here, it seems least plausible to me that consent can be revoked, though of course even here this isn’t a law of nature, and we could set up a system that allowed this, too.

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Belle Waring 08.01.19 at 1:59 pm

What if the benefit was for the purposes of sexual gratification, not money, as mentioned in the case above, in which joining a group with massive numbers of unwilling nudes requires the contribution of your own unwilling nudes. They person sharing the photos is gaining access to tons of other photos such that it’s a trade in kind; isn’t this a case similar to material gain?

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Rob 08.01.19 at 2:52 pm

Belle:

Everyone seems to regard my withdrawal of consent notion as troublesome in some way. When are you likely to withdraw consent from someone’s possession of your nudes? Precisely at the point that the other person uploads them to some sleazy reddit board, right? This is neither complicated, nor difficult to understand. Am I, the sharer of the images, now on the hook for legal troubles because the person in the photo objects to me doing this with the photos, when they were fine with me having them myself to enjoy, even though this involves withdrawal of consent? Yes, sure!

I found this a bit confusing at first, so let me see if I have this right:

Person A is the subject of nude photographs. B receives a copy of one or more of these from A. Under our assumed legal framework, B has implied consent from A to possess the images, but not to share them with anyone else.

B subsequently shares them anyway. In doing so, they have done something that requires A’s explicit consent, but that A did not consent to, which would be (under our assumed legal framework) illegal. Subsequently, A explicitly withdraws consent for B’s mere possession of the images.

There’s a simple enough analogy with losing a copyright license if you violate the terms of the license, so people are already doing things like this with images all the time.

The important part of the above example is that I’m presuming that the implied consent one has as the recipient is totally separate from the explicit consent one would require to share an image. I’m not sure that this is a common understanding of the situation though. I’m also mixing implied and explicit consent, so if that makes the example harder to understand then just assume that all consent is absolutely explicit.

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Belle Waring 08.01.19 at 5:08 pm

I don’t see anything wrong with separating the permission to have a photo for your own gratification from the permission to post the picture online/text it to everyone at your school. One might very easily consent to the former and not the latter–in fact it’s most likely. Most “revenge porn” involves images taken ostensibly for the personal gratification of a trusted sex partner, who then turns the images to terrible ends once the relationship is over. It is a frequent contention among people who think images should be shared freely regardless of consent that letting a partner take images of you like that is so colossally stupid that you should have no recourse when the pictures are widely spread. This is obviously an awful argument. “She was stupid to trust the person she then loved–now the photos of her are fair game.” As I say, this was the argument advanced during the Fappening, with the additional proviso, “she backed up her computer/phone to the cloud; what did she expect?”

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oldster 08.01.19 at 5:10 pm

As Agathon said. Which we know because Aristotle quoted him.

(Sorry! Pedantry is a hard habit to break, even after one has retired from an active life of pedantry.)

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engels 08.01.19 at 5:17 pm

A final scenario would be one where a person has received material benefit in exchange for agreeing to make the photo sharable – money, usually. Here, it seems least plausible to me that consent can be revoked, though of course even here this isn’t a law of nature, and we could set up a system that allowed this, too.

But this certainly isn’t how most people would approach sexual consent (in that case I think most people would say the buyer was entitled to compensation, not performance, which most would view as rape). Is this motivated by the idea that contracts have a stronger legal status than promises? (I’ve never been sure what the justification for that is, though I’m aware it’s a fact about how law works.) Or I guess by an assumption of legitimacy re porn industry….

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Belle Waring 08.01.19 at 6:05 pm

As Agathon said. Which we know because Aristotle quoted him.

Such are the perils of just remembering stuff and not looking it up. I should have known that though. Thanks for the pedantry!

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engels 08.01.19 at 7:08 pm

I’m sympathetic to the moral argument of the post re revocability of licences but I’m concerned the legal/technological apparatus required to enforce it would be re-purposed for other things the possession of which had traditionally entailed a right to use indefinitely and pass on to others (newspapers, books, cars, home appliances, incriminating documents concerning the powerful, etc). But I guess that might be the way things are headed anyway…

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Philip 08.01.19 at 7:27 pm

It seems to me that a law along the lines of making it an offence to publish or distribute photographs when doing so might reasonably be considered to cause harm. There would be no need to prove intent just a lack of reasonable consideration of the possibility of doing harm. There would also be some protection for defendants from malicious allegations.

In what might be a borderline case, e.g. a photo shared by a man of himself with his ex-girlfriend at a beach in a bikini. Then context would be considered such as, who was it shared with, what comments were made, the state of their current relationship, the man’s knowledge of his ex’s feelings around her body etc. People in the background of the photo would have a harder a case to make.

The main problem would be the fine tuning of what is reasonable. That would have to be done through setting presidents in case law. That would put people off from coming forward initially but that is also part of a wider problem of adversarial justice system.

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Z 08.01.19 at 8:02 pm

How do you avoid that? Don’t share a photo if you don’t have authorization! This is not a hard issue!

That sounds very reasonable indeed but I wonder if changing social norms aren’t complicating this topic slightly.

A huge part of the social life of a significant number of people apparently now consists in sharing and willingly disseminating pictures, including intimate, sexy, or sexual ones. Some apps and websites appear to be designed to maximize that effect (for instance dating or quasi-dating websites; I could be blunt but I think people see what I mean) and I’m told that sending your lover an intimate picture is now part of a relatively normal couple life, even (or perhaps especially) at early stages, and even (or perhaps especially, in some circles) if the channel used to do so is accessible to other viewers.

Honestly, that’s something I don’t understand myself, as I’m totally out of sync with these aspects of contemporary life, but younger people’s dealings with privacy and sexual intimacy might be evolving in ways that make these questions less clear cut than they appeared (or still appear) to me.

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engels 08.01.19 at 8:17 pm

Btw I’m not suggesting it’s a problem for the original proposal but you might wish to consider whether it should apply to this:
https://en.m.wikipedia.org/wiki/Claire_Swire_email

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engels 08.01.19 at 8:35 pm

I’m totally out of sync with these aspects of contemporary life, but younger people’s dealings with privacy and sexual intimacy might be evolving

They’re evolving is in the direction of personal branding: maximise your reach, maximise (if not monetise) your control over the dissemination & reception of your image (nous sommes tous Taylor Swift).

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Dipper 08.01.19 at 9:07 pm

This looks like a civil law thing? complainant has to show some kind of loss or invasion of privacy. Defendant has to have some kind of public interest or ownership argument? Magistrate decides on balance of probabilities. Cease and desist, payment of fines if not complied with etc. I think criminal law will get very messy.

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Belle Waring 08.01.19 at 9:45 pm

“Cease and desist, payment of fines if not complied with etc.”

There is no meaningful ceasing or desisting if someone has already uploaded the image. I mean, you can get them to stop doing it that second, but the harm is done.

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Dipper 08.01.19 at 9:59 pm

There is no meaningful ceasing or desisting if someone has already uploaded the image. Well, they can take it down. If it was obvious that uploading the image was an invasion of privacy and would cause embarrassment, or was done maliciously, there’s damages. And websites that host images that have been the subject of a court order can be shutdown. Judging from the speed videos on You Tube that may or may not breach copyright get taken down then it is perfectly possible for sites to police this.

@ engels. Yes I remember that one. Whoever passed that on to a media outlet should be done for invasion of privacy, and there was no public interest in publishing it so it shouldn’t have been published.

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Moz of Yarramulla 08.01.19 at 11:20 pm

Making consent irrevocable if it’s in writing or payment is made does make things more interesting. A sends an image to B. B promptly sends A one dollar with the comment “payment for image”. A cannot now withdraw legal consent for B to have that image? And of course no abuser would *ever* make such a payment or forge/coerce a written agreement. I think this restriction is creating more problems than it solves, even as it tries to work around other problems.

I don’t think the comparison to raping prostitutes is plausible, the situation is more akin to the classic fake rape scenario of someone changing their mind the morning after and retroactively withdrawing consent. That exact parallel makes sense to me, especially in a criminal law sense.

Subsequently, A explicitly withdraws consent for B’s mere possession of the images.

This is one of the places where “simple and obvious” fails for me. As I said, either this is simply a request that can be ignored, or requires B to prove a negative. IMO at best you could say “if B is later found in possession they have committed an offence”.

Why not just go with “illegal sharing” being the crime and be done? That IMO meets the “simple and obvious” requirement for a law.

That also avoids the whole “retroactive criminalisation of people who could not have known they were committing an offence”. Specifically, the offence of “obtaining images where consent would later be withdrawn”. I suspect that wouldn’t be constitutional in the USA, but in Australia a similar law is part of our constitution (no member of parliament may hold citizenship of another country… which has been held to include retroactive grants of citizenship. Australia is special).

But the minefield of “I gave you a gift and now demand that you destroy all evidence of the gift” seems unwise. I mean, sure, as a personal statement it’s fine and even understandable, but as a legal demand seems unreasonable. At the very least it presumes a hostility between the parties that makes co-operation with the demand unlikely, and will probably create that hostility if it doesn’t exist already.

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Moz of Yarramulla 08.01.19 at 11:31 pm

I wonder if changing social norms aren’t complicating this topic slightly.

Not to Belle, since she has a bright line test between pornography and public images, and unlike other legal situations that line is immediately obvious to anyone. Since antisocial media don’t allow pornography the question cannot arise.

Yeah, that’s me being extremely sarcastic. It’s also my understanding of Belle’s position.

Once we start asking “what counts as a sexual image” we have to deal with paedophiles who collect images from advertising, all the youtube channels featuring weird slightly-sexual material and definitely sexual comments (read the comments on any youtube channel after one of the women featured gets breast implants, for example), right on down to photos on fetish dating sites that are utterly unremarkable except in that specific context. It’s a whole minefield of its own, separate from the consent problems.

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hix 08.02.19 at 12:45 am

“A huge part of the social life of a significant number of people apparently now consists in sharing and willingly disseminating pictures, including intimate, sexy, or sexual ones. Some apps and websites appear to be designed to maximize that effect (for instance dating or quasi-dating websites;”

In part thanks to the US norms enforced arround the world theres a pretty clear line what kind of pictures are posted on Facebook completly public or at least to ones 500 friends or on more regular basis on tinder – bikini pictures. Its sort of weird for me too, that on can see all those pictures from distant acquaintances that one would typically not do a bathing trip with, but basically the difference to the old days is just that everyone can now watch photos, but its still same level of nudity, actually a bit less than was common to be shown in public before. And whats shown in public now tends to decrease precisly because there is a risk one could have to live with a phote shared on the internet for decades. The pictures with more nudity i would asume are still quite for private use.

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engels 08.02.19 at 5:30 am

Yes I remember that one. Whoever passed that on to a media outlet should be done for invasion of privacy

Refresh your memory: it was an email that went viral (by repeated forwarding) before the media got involved.

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engels 08.02.19 at 5:50 am

This looks like a civil law thing? “Cease and desist, payment of fines if not complied with etc.

It seems like this discussion would really benefit from some vague knowledge of positive law (iirc there are already criminal penalties for copyright infringement in most places but perhaps only if commercial motivation is clear and harms are very serious?)

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Trader Joe 08.02.19 at 10:23 am

While the notion of a law where the ‘victim decides’ and if you don’t comply you face criminal charges is one that seems to make sense in a playground justice sort of way, the practical enforcement of it is really kinda challenging.

Recent estimates suggest 400 million images get posted to social media EVERY DAY. Unless you’re planning to establish a Ministry of Truth to police and adjudicate all of the claims about what was posted and what permission existed, there’s no court system or police department on the planet that could begin to keep up.

I hate to be all ‘it will never work’ about it – but as good as the idea sounds, its probably a genie that’s long since left the bottle.

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Belle Waring 08.02.19 at 12:58 pm

It’s actually extremely hard for CPS to detect, or the courts to prosecute, child abuse, even when it is very bad indeed. If your abuser says he will kill you and your siblings if you ever mention it to anyone, even once, you just won’t do it (I hear tell). And people are expert at concealing evidence of crimes like this. It’s my general feeling that the vast majority of abusers like this go uncaught, and if they are, the child often refuses to cooperate, and then, there is often no or little physical evidence. If a child isn’t underweight and is unwilling to talk there will be no evidence his stepfather is withholding food from him. Obviously at one extreme we have CPS more or less snatching children from impoverished families, but on the other we have lots of better-off folks getting away with…hopefully not murder, but something terrifying. This is not meant at all as an analogy to non-consensual sharing of sexualized images qua crime (as it’s obviously among the more horrific crimes there is), just qua crime difficult to detect and prosecute. No matter how frequently this crime were to go unpunished, or how difficult it were to be granted a trial, or how difficult ever to win it were, we would still be right in pursuing justice as hard and vengeful as ever we could. (Yeah I said vengeful. I don’t feel as strongly about revenge porn obviously.) In short, difficulty of prosecution is a poor argument for not even crafting compelling statutes about a crime.

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Orange Watch 08.02.19 at 4:30 pm

Dipper@92:

The law referenced in OP defines both civil law and criminal law WRT “unlawful dissemination or publication of an intimate image”, as it phrases it. The criminal side allows for up to a year imprisonment and/or a fine of the greater of $1000 or twice any monetary gain derived from said act.

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faustusnotes 08.03.19 at 1:43 am

I hate to disappoint engels et al but the Claire Swire email was a hoax played on the new boy at the workplace, it never happened. But please do keep thinking that girls send emails to their boys telling them their cum is yummy – it really does happen, honestly!

(I want to believe those girls are out there too and “Claire”‘s tone was very sweet in the original email but apparently it was all a lie).

This whole debate would be much easier if we were able to take pictures of ourselves down from the internet, and in particular if our pictures were our own copyright and no one could use them without our permission at any time, ever. Obviously this would be bad for Facebook’s business model, but it would make a lot of difference to the way we were able to negotiate revenge porn issues.

In my post on the Sokal Hoax I raised the issue of upskirting, a crime which typically does not “harm” the affected woman in any way – typically the woman’s face is not shown and her identity is unknown. So in theory – if the only “harm” we need to consider is that of financial, shame, etc. – then upskirting should be completely fine. It’s a victimless crime! But everyone thinks upskirting is a disgusting crime. Why? Because it’s wrong for a woman to have a private image of herself used for the sexual gratification of men she doesn’t know without her consent, even if she doesn’t know they’re using it and they don’t know who she is.

If you think that sharing photos is only a problem if it can be traced back to harm the woman, but that e.g. anonymous sharing amongst friends is okay, then you’re in favor of a large proportion of the upskirting that is done around the world every day. That’s probably not a very cool position to be taking.

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Moz of Yarramulla 08.03.19 at 5:26 am

Belle, as with the state seizing and abusing children in order to prevent their parents doing so, your proposed law appears to have the state decide which photos shall be permitted in order to prevent bad people making that decision. Doesn’t seem like a good trade-off to me.
I’m still not convinced that, say, a Republican judge who happens to be an old, white man will apply your proposed law the way you imagine he will, especially when the alleged criminal is another rich old white Republican man and the complainant is a young woman. It doesn’t have to be Monica Lweinsky, it could be Stormy Daniels or Jennifer Lawrence, or even some anonymous woman who is “too ugly“. Regardless, I can’t help but think that the most likely outcome is further degradation for the victim and perhaps a little tut-tutting at the alleged offender.
I can only imagine the consequences should the complainant be found to have illegal photos in their possession… and as you say, anyone featured in any photos found should be given the opportunity to make possession of them a criminal offence. It would be particularly ironic if the photos in question were unsolicited dick pics.

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nathan norton 08.03.19 at 7:14 pm

What you do in public is public, what you do in private is private, pictures or no pictures. This is the whole of the law and the prophets.

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engels 08.04.19 at 1:22 am

apparently it was all a lie

…according to a corporate lawyer who would otherwise face the sack. Sounds legit!

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