Perhaps the most degrading and humiliating experience is the publication, without permission, of one’s nude photos. One of America’s most famous nude photo humiliations was of Marcia Clark, a prosecutor of O.J. Simpson, whose private photographs were released publicly five months into the infamous double murder trial. Publication of private pictures is a devastating and common experience that primarily affects women. The victims of revenge porn, the publicizing of one’s sexually explicit images or videos online without consent to cause embarrassment or distress, are 90 percent women. Rebecca Addison, “After Falling Victim to Revenge Porn, Former Pittsburgh News Anchor Darieth Chisolm Speaks Up,” Pittsburgh City Paper, Nov. 22, 2017. The professional and personal ramifications of publicizing private pictures and videos are often severe.
While the effects of revenge porn vary, the majority of victims experience extremely negative consequences. A nonprofit, Cyber Civil Rights Initiative, found the following data in a 2015 survey. Among revenge porn victims, “93% reported significant emotional distress and 82% reported suffering significant impairment in social, occupational, or other important areas of functioning.” Sameer Hinduja, Cyber Civil Rights, Initiative, “Porn Research, Laws, and Help for Victims.” Among victims, 39 percent reported that the posting of revenge porn affected their professional life. Id. In addition, 49 percent of victims reported suffering harassment from users viewing their posted images. Id. Most drastically, 51 percent of respondents indicated they considered committing suicide as a result of their ordeal. Id.
Attorney Elisa D’Amico stated, “It’s becoming an epidemic.” Erica Fink & Laurie Segall, “Revenge Porn Victim: My Naked Photos Were Everywhere,” CNN Tech, Mar. 7, 2016. This cultural phenomenon is affecting famous and everyday women alike. Pamela Anderson, Kim Kardashian, and Paris Hilton all had sex tapes posted online without their permission. Nude images of Jennifer Lawrence and Rihanna went viral after their iCloud accounts were hacked. Rihanna stated, “It was the worst thing that could possibly ever happen to me. . . . It was humiliating and it was embarrassing, especially my mom having to see that.” BET Staff, “Here Are Four Other Cases of Celebrity Revenge Porn,” BET, July 5, 2017. While there have been instances of justice for victims—Lastonia Leviston, for example, won a $5 million revenge porn lawsuit against the rapper known as 50 Cent—this does not stem the epidemic. Id. According to a study published by the Data & Society Research Institute, about 1 in 25, or nearly 10 million, Americans have been threatened with or are the victim of revenge porn. Lori Janjigian, “Nearly 10 Million Americans Are Victims of Revenge Porn, Study Finds,” Bus. Insider, Dec. 13, 2016. So why has revenge porn become an epidemic?
Revenge porn became an epidemic for various reasons, from difficulties in regulating the deep web to whack-a-mole approaches of taking down illegal pornography. A possible contributor to this phenomenon is cultural victim-blaming for consenting to take compromising pictures and videos in the first place. Regardless of the plethora of factors contributing to why revenge porn is, for lack of a better word, viral, the problem is persisting, specifically targeting women, and a gross misuse of technology. Ultimately, its existence creates a huge demand for technology lawyers.
So what are technology lawyers doing to help protect women from revenge porn and subsequent harassment? By representing their clients, by supporting more effective laws, and by actively educating the public about these legal issues in articles, conferences, and interviews, tech lawyers are helping women. An example of an attorney educating the public about revenge porn issues is Daliah Saper. Saper said in an interview that “it’s difficult for law enforcement to understand the nature of revenge porn. They’ve been trained to focus in most cases on cyberstalking [and] cyberbullying—where there’s some overt threat of bodily harm.” Fink & Segall, supra. This explanation highlights the problem that when victims feel ashamed but there’s no imminent threat, it won’t be a priority. Another issue lawyers face in prosecuting revenge porn cases is it is not always clear which laws are being broken.
The confusion about which laws apply is understandable given the borderless nature of the Internet and states’ diverse laws. Currently, 38 states have laws against nonconsensual porn. Hinduja, supra. Most states outlaw the “dissemination of intimate images” without consent, while others consider the act to be cyber harassment and stalking. Id. For example, while Florida made the act of dissemination of intimate images a first-degree misdemeanor, New Jersey considers it a third-degree invasion of privacy, and Virginia considers it the unlawful sale of another’s image. Id. For that reason, how the images were obtained and where they were posted factor into how a case can be prosecuted. Further, the borderless nature of the Internet makes it difficult to regulate and, in many ways, the modern-day wild west. Another issue lawyers face in prosecuting revenge porn cases is that, currently, there is no federal law regarding nonconsensual porn.
Congresswoman Jackie Speier states, “For victims of non-consensual pornography, technology today makes it possible to destroy a person’s life with the click of a button or a tap on a cell phone. The damage caused by these attacks can crush careers, tear apart families, and, in the worst cases, has led to suicide.” Press Release, Office of Congresswoman Jackie Speier, Rep Speier and Sens Harris, Burr, and Klobuchar Introduce Bipartisan Bill to Address Online Exploitation of Private Images (Nov. 28, 2017). To fix this problem, the Ending Nonconsensual Online User Graphic Harassment (ENOUGH) Act, H.R. 4472, was introduced in 2017. If it becomes law, it would federally outlaw the posting of porn without consent. Congresswoman Speier further said that “the vast majority of victims have no way to fight back. Even in states that have laws on the books, the average person can’t afford to take on these predators in civil courts. . . . The ENOUGH Act will fix this gaping hole in our legal system.” Speier Press Release, supra. Also, ENOUGH has bipartisan support and the backing of big tech companies like Facebook and Twitter. Therefore, there is hope that the law will soon become more uniform and justice for victims more attainable.
In sum, technology lawyers have a unique opportunity to protect women in the modern-day wild west—the Internet. The epidemic of revenge porn has strong emotional, social, and professional ramifications. Marcia Clark, in discussing the O.J. Simpson trial and the nude pictures, stated it was a “painful experience” and every bit of it was “awful and hard for me.” Joanna Robinson, “The Devastating Truth Behind Marcia Clark’s Leaked Topless Photos,” Vanity Fair, Mar. 8, 2016. The victims of revenge porn all similarly recollect their experiences. However, tech lawyers are serving as champions and advocates of women who have been harassed and victimized by revenge porn. Based on the outcome of their cases, these lawyers have the ability to combat unfairness and inequality while improving both Internet and privacy law. Ultimately, tech lawyers are addressing civil rights issues as much as technology use issues. Therefore, those who are searching for nobility in the legal profession will find it here.
Nova I. Levant is a 2019 J.D. candidate at the University of Dayton School of Law in Dayton, Ohio.