Some More Thoughts on Revenge Porn Websites Legal Issues
February 14, 2013
The website End Revenge Porn links to some laws that I did not discuss in my first blog article on Revenge Porn Websites.
1. Stalking and Harassing
The actions of the Revenge Porn Websites constitute stalking which is a federal crime (see 18 USC § 2261A – Stalking and 18 USC § 2261 - Interstate domestic violence). I do not believe that there is a private cause of action under these statutes. That means that only a federal prosecutor could decide to charge a Revenge Porn Website operator with violating these statutes. Many states have cyberstalking and cyberharassment laws. There is a good summary of state laws at the National Conference of State Legislatures website here.
In Washington there are similar laws against stalking, see RCW 9a.46.110 Stalking and RCW 9.61.260 Cyberstalking and against harassment: see RCW 9A.46.020 Definition — Penalties and Chapter 10.14 RCW Harassment. These statutes define criminal behavior but they do not provide for a private right of action. They do suggest that someone might be able to obtain a protection order. A protection order against the individual who posited the pictures might be an effective tool to stop that person from distributing the pictures elsewhere. But there are difficulties with trying to get a protection order against the people who are behind the Revenge Porn Websites. You have to find them and serve them. You have to have some proof that they are behind the websites. And then if they ignore the protection order, you will have difficulty enforcing the order if they do not live in the same state as the court that issued the protection order.
2. Federal Record Keeping Requirements
There is a federal law called the Child Protection and Obscenity Enforcement Act, located at 18 USC § 2257 – Record keeping requirements, that is intended to protect children from being victims of child pornography. It requires everyone who produces image of actual sexually explicit conduct to seek proof that every person whose image is depicted is at least 18 years old, and to keep that proof on file. Revenge Porn Websites do not comply with this statute.
There are several problems with applying this law to Revenge Porn Websites. First this law applies only to actual sexually explicit conduct. Nude and semi-nude pictures do not necessarily depict actual sexually explicit conduct. They can depict actual sexually explicit conduct if they include the “lascivious exhibition of the genitals or pubic area of any person,” which arguably only applies to some of the Revenge Porn Websites images.
Second this law only provides for government action. It does not provide for a private right of action. The federal government has shown no interest in enforcing the statute. There has been only one prosecution under this statute, in 2006 and most of the charges were later dropped. The FBI has conducted a few audits but no charges resulted from its activities.
Third, it is widely reported in various articles that over half of all of websites that display actual sexually explicit conduct are not in compliance with this law. It is unlikely that any one website will be singled out for enforcement.
And fourth, federal courts are still struggling with the issue of whether sections of the law and the regulations that were drafted to enforce it unconstitutional. So far, the court decisions are not consistent.
The Child Protection and Obscenity Enforcement Act does not provide a useful tool in fighting Revenge Porn Websites.
3. Some More Practical Considerations
I have not heard of anyone being able to convince their local police to take any action against the individuals posting the picture or the Revenge Porn Website operators. (Please let me know if you have.) It might help spur the police to action if you bring them copies of the various state statutes that I have mentioned in these articles, including, if appropriate in your state and your case:
extortion and blackmail
child pornography
invasion of privacy and related causes of action
voyeurism
stalking and harassing
You could also consider taking your case directly to the government prosecutors office. In Washington, misdemeanors are usually handled by city attorneys, while felonies are always handled by the county prosecutors office. But every state is different. Again it will help if you can show them your evidence and copies of the statutes you think have been violated.
1. Stalking and Harassing
The actions of the Revenge Porn Websites constitute stalking which is a federal crime (see 18 USC § 2261A – Stalking and 18 USC § 2261 - Interstate domestic violence). I do not believe that there is a private cause of action under these statutes. That means that only a federal prosecutor could decide to charge a Revenge Porn Website operator with violating these statutes. Many states have cyberstalking and cyberharassment laws. There is a good summary of state laws at the National Conference of State Legislatures website here.
In Washington there are similar laws against stalking, see RCW 9a.46.110 Stalking and RCW 9.61.260 Cyberstalking and against harassment: see RCW 9A.46.020 Definition — Penalties and Chapter 10.14 RCW Harassment. These statutes define criminal behavior but they do not provide for a private right of action. They do suggest that someone might be able to obtain a protection order. A protection order against the individual who posited the pictures might be an effective tool to stop that person from distributing the pictures elsewhere. But there are difficulties with trying to get a protection order against the people who are behind the Revenge Porn Websites. You have to find them and serve them. You have to have some proof that they are behind the websites. And then if they ignore the protection order, you will have difficulty enforcing the order if they do not live in the same state as the court that issued the protection order.
2. Federal Record Keeping Requirements
There is a federal law called the Child Protection and Obscenity Enforcement Act, located at 18 USC § 2257 – Record keeping requirements, that is intended to protect children from being victims of child pornography. It requires everyone who produces image of actual sexually explicit conduct to seek proof that every person whose image is depicted is at least 18 years old, and to keep that proof on file. Revenge Porn Websites do not comply with this statute.
There are several problems with applying this law to Revenge Porn Websites. First this law applies only to actual sexually explicit conduct. Nude and semi-nude pictures do not necessarily depict actual sexually explicit conduct. They can depict actual sexually explicit conduct if they include the “lascivious exhibition of the genitals or pubic area of any person,” which arguably only applies to some of the Revenge Porn Websites images.
Second this law only provides for government action. It does not provide for a private right of action. The federal government has shown no interest in enforcing the statute. There has been only one prosecution under this statute, in 2006 and most of the charges were later dropped. The FBI has conducted a few audits but no charges resulted from its activities.
Third, it is widely reported in various articles that over half of all of websites that display actual sexually explicit conduct are not in compliance with this law. It is unlikely that any one website will be singled out for enforcement.
And fourth, federal courts are still struggling with the issue of whether sections of the law and the regulations that were drafted to enforce it unconstitutional. So far, the court decisions are not consistent.
The Child Protection and Obscenity Enforcement Act does not provide a useful tool in fighting Revenge Porn Websites.
3. Some More Practical Considerations
I have not heard of anyone being able to convince their local police to take any action against the individuals posting the picture or the Revenge Porn Website operators. (Please let me know if you have.) It might help spur the police to action if you bring them copies of the various state statutes that I have mentioned in these articles, including, if appropriate in your state and your case:
extortion and blackmail
child pornography
invasion of privacy and related causes of action
voyeurism
stalking and harassing
You could also consider taking your case directly to the government prosecutors office. In Washington, misdemeanors are usually handled by city attorneys, while felonies are always handled by the county prosecutors office. But every state is different. Again it will help if you can show them your evidence and copies of the statutes you think have been violated.