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Florida takes major steps towards making revenge porn a felony

Screenshot of IsAnybodyDown, a revenge porn site.

Florida is one of the first states to take definitive action against revenge porn. The House subcommittee unanimously voted in favor of a bill that would make posting revenge porn a felony punishable by up to five years in prison and a $5,000 fine.

Despite the fact that revenge porn is a pervasive and alarming problem, the practice still exists in a legal grey area. Revenge porn refers to the act of ex-lovers uploading illicit photos to the Internet. The images are often accompanied by personal identification information, and done without the subject’s consent. This is not technically illegal because the photos may be considered the photographer’s intellectual property, and the line between invasion of privacy and free speech is a thin one. Furthermore, operators of these sites claim they are not responsible for user-submitted content due to the Communications Decency Act, and content is often submitted anonymously.

House Bill 787 “prohibits knowing use of [content] that depicts nudity and contains any of depicted individual’s personal identification information or counterfeit or fictitious information purporting to be such personal identification information, without first obtaining depicted person’s written consent.”

Victims can currently make claims against their harassers through civil channels, but this bill would make revenge porn a criminal act. It recognizes “contextual consent,” which means that while a person may allow photographing or filming in one context, they would not allow it in another. For example, a girlfriend who lets her boyfriend take a nude photo in the privacy of her home is not consenting to having that photo published on the Internet a year later with links to her social media profiles. Other provisions of the proposal include enhanced penalties for violations involving victims under 16 years of age and targets perpetrators who live outside of Florida but post content involving in-state residents.

However, some say the Bill is not specific enough. In an interview with Salon, Mary Anne Franks, a law professor at the University of Miami, said that while the recognition of “contextual consent” is good, the law is both too broad and too narrow. On the one hand, it applies to any image that depicts nudity, which could include someone standing next to a nude statute. On the other hand, the law is too narrow because it does “not apply to depictions of graphic sexual activity unless certain parts of the body are visible.” Franks cited a case where a man posted a picture of himself ejaculating on his sleeping girlfriend’s face, which does not violate the law.

Revenge porn and its criminalization have recieved national attention over the past week as a group of lawyers, bloggers, and activists work to bring down “IsAnybodyDown,” one of the most well-known revenge porn sites, which features photos of hundreds of people. In March, CBS Denver reported that the federal government may launch a formal investigation into the site after several underage victims filed copyright registration certificates in Colorado with intent to sue. These class action suits, while they can have an impact, are slow to move and do not have the immediacy of a criminal case. The man behind IsAnybodyDown, Craig Brittain, has twice closed down his site after coming under scrutiny and transferred the content to a new site to frustrate the authorities.

Revenge porn sites have existed for a decade, and yet little progress has been made to address the problem. San Francisco attorney Erica Johnstone told VentureBeat’s Christina Farr that when she first started handling cases like these, they were individual cases of an ex seeking revenge. Now, there are more examples of hacking and extortion, such as a scheme that charges victims hundreds of dollars to remove them from the site. Additionally, the rise of camera phones and sexting mean that people can be photographed without their knowledge.

The Florida bill provides an effective date of October 1, 2013. Representative Tom Goodson authored the bill, with support from the Brevard Country Chief’s Association, State Attorney Phil Archer, Attorney General Pam Bondi, and the Florida Sherrif’s Association. The bill followed a report of a young woman in Brevard County who had nude photos, her name, email address, and hometown posted without her consent, and when she went to the Sheriff’s department for help, was told it was not a crime.

Photo credit: Screenshot


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