Facebook, revenge porn, and the federal laws that fail us all

If you’re one of the people who doesn’t typically worry about images of you being shown online without your consent, congratulations. For the rest of us, who may have been in the vicinity of a camera and another person, we should point out there’s still no federal regulation preventing another person from distributing intimate images without your consent.

Such images are colloquially known as “revenge porn” because of a perception that they are distributed by jilted lovers or ex-partners with chips on their shoulders, but there’s more to it than that. They can be taken by rapists, peeping toms, even total strangers. And they’re not always distributed with the intention of wrecking the victim’s life — that doesn’t make them any less galling and violating.

The social safety net for these cases is frighteningly fragile. It’s past time for the offense to be unilaterally prohibited.

Social protections

In May, The Guardian revealed Facebook is flooded with revenge porn and sextortion cases. In January, it assessed 54,000 cases and disabled 14,000 accounts — and those were just the ones moderators brought to the attention of senior management.

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Sources told The Guardian that Facebook’s rules regarding these cases are the hardest to follow: “Sexual policy is the one where moderators make most mistakes. It is very complex.” Who knows how many more slipped the net due to poor judgment by moderators?

Facebook’s terms of service (and an employee’s interpretation of them) shouldn’t be the only source of justice for a victim of this form of violation — if only because Facebook is far from the only place where images like that are distributed.

According to the Cyber Civil Rights Initiative, 36 US states have laws preventing the distribution of personal or intimate images. That leaves 14 yet to be accounted for. It may sound fairly positive, but we’re talking about a murky area of cyber crime. Suppose the person who did the posting lives in a state without such a law? Or suppose their state does, but yours doesn’t? I’d much prefer to see a nationwide prohibition, and in clear language.

But if we wanted to adopt a federal law, where would the precedent be? What language could we work from? The US Navy may have the solution.

Naval protections

We talked earlier this year about the Department of Defense’s investigation into a suspect Facebook group called Marines United. Members of this group were distributing hundreds of explicit pictures of female service members without the women’s knowledge or consent.

Following the investigation, the United States Navy (and Marines) made revisions to their regulations.:

Article 1168 of reference (a) is added to read as follows:
a. 1168. Nonconsensual distribution or broadcasting of an image
(1) The wrongful distribution or broadcasting of an intimate image is
prohibited.
(2) The distribution or broadcasting is wrongful if the person making
the distribution or broadcast does so without legal justification or excuse,
knows or reasonably should know that the depicted person did not consent to
the disclosure, and the intimate image is distributed or broadcast:
(a) With the intent to realize personal gain;
(b) With the intent to humiliate, harm, harass, intimidate,
threaten, or coerce the depicted person; or
(c) With reckless disregard as to whether the depicted person
would be humiliated, harmed, intimidated, threatened, or coerced.

The amendment specifies what it means by “broadcasting” (electronically distributing with intent to be viewed) and “intimate image” (image depicting an identifiable person in a sexual manner or with private parts showing, taken under circumstances where that person has a reasonable expectation of privacy). The language — while perhaps not as clear as a lawyer would like — is unambiguous if you look at it through a “common sense” filter.

I’m not suggesting the federal government should adopt the Naval law verbatim. Military regulations are designed to give military commanders firm rules to keep subordinates in line, not protect the rights of civilians.

That said, the language is clear and strong and could probably be adapted for civilian use without altering much dialogue. At the very least, it can be used as a template for the remaining 14 states without explicit laws against revenge porn.

Civilian protections

There’s already some movement on that front, too: Representative Jackie Speier of California introduced a bill last year called the Intimate Privacy Protection Act. This would make revenge porn a federal crime carrying a maximum prison sentence of five years. There’s been no activity on that bill since last August.

The bill provides protection for platforms through which revenge porn is distributed, such as Facebook, while also providing an avenue for the victims. The similarities between the two pieces of legislation are clear. It proposes:

To amend title 18, United States Code, to provide that it is unlawful to knowingly distribute a private, visual depiction of a person’s intimate parts or of a person engaging in sexually explicit conduct, with reckless disregard for the person’s lack of consent to the distribution, and for other purposes.

The bill has its detractors — the ACLU contends that it violates freedom of speech by not making it incumbent upon prosecutors to establish “malicious intent.” In a statement to Broadly, a spokesperson said the bill “could be made better, narrower,” to avoid prosecuting artists, journalists, or parents distributing baby photos. A proponent retorted that defining malicious intent might make it harder to prosecute those who have no intent to harm yet do so anyway — like Marines United.

The law needs to catch up with the internet.

Federal law banning revenge porn isn’t a magic bullet — some of the cases might be too ambiguous for even the best lawyers — but it would be a start. It would mean that someone besides Facebook is protecting people who’ve had their privacy violated in such a public, and uneraseable way. After all, it’s the government’s job to safeguard a person’s right to privacy — not Facebook’s.