Saturday, March 9, 2013

Response to Eric Goldman’s claim that revenge pornography is protected by federal law

Eric Goldman, a law professor of Santa Clara University, wrote an article for Forbes Magazine in which he argued that federal law shields revenge pornographers from civil lawsuits and criminal prosecution.  Goldman, Eric.  “What Should We Do About Revenge Porn Sites Like Texxxan?”  Forbes Magazine.  Published January 28, 2013.  Mr. Goldman’s claims are not only incorrect, but are dangerous insofar as they embolden revenge pornographers to continue their war against women.
In his article, Mr. Goldman refers to Attorney John Morgan’s class action lawsuit against when he writes “No matter how much the lawyers hype their lawsuit in the media, it’s mostly dead on arrival.  All of the defendants—other than the users actually submitting the revenge porn—are protected by 47 USC 230, the law that says websites aren’t liable for third party content.”  Mr. Goldman goes on to state that the “existing class action is . . . weak.”
Section 230 of Title 47 of the United States Code does offer immunity for website providers that permit third parties to post content, but that is not the end of the analysis.  47 U.S.C. § 230(e) explicitly states that the section does not provide criminal immunity for obscenity-related crimes, nor does the section provide civil immunity for infringement of intellectual property rights.  It is for this reason that the Federal Bureau of Investigation has launched investigations into the revenge pornography websites Is Anyone Up? and Texxxan.
Pornography websites, pursuant to 18 U.S.C. § 2257, are required to, among other things, maintain accurate and complete identification records of the nude models that appear on their websites.  Revenge pornographers do not maintain such records, and so the websites are arguably violative of this law.  A first conviction carries up to five years in federal prison, while a second conviction carries between two and ten years in federal prison.
Revenge pornographers may also be criminally prosecuted under state or federal law for distributing child pornography if they disseminate a nude image of someone under the age of 18.  The federal law at issue is 18 U.S.C. § 2252.  A first conviction under this statute carries a sentence of between five and twenty years in federal prison.
Regarding the infringement of intellectual property rights not being privileged by § 230, Title 17 of the United States Code states that photographers retain copyrights in their photographs.  Once a website is put on notice that it is infringing upon the intellectual property rights of an individual, they are removed from the “safe harbor provision” of the Digital Millennium Copyright Act and can be sued for copyright infringement.  Being that most of the nude images of the women are self-taken, they can sue the revenge pornographers for copyright infringement if their nude images end up on a website without their authorization.
Notwithstanding how obscenity-related crimes and infringement of copyrights pierce § 230 immunity, an argument can also be made that revenge pornographers are co-developers of the content that they post, which means that the nude images are not “user submitted content.”  In Fair Housing Council of San Fernando Valley v., LLC, 521 F.3d 1157 (9th Cir. 2008), the Ninth Circuit held en banc that a website that induces third parties to provide illegal content is not shielded by Section 230 of the Communications Decency Act.
Revenge pornographers are arguably co-developers of the content on their websites, because they actively acquire nude images and information about their victims, and then they synthesize it into a package that they post onto their websites.  In effect, through their active involvement in procuring and editing the content, the revenge pornographers become co-developers of it and lose Communications Decency Act immunity.  This argument is not original; it was also made by Abby Rogers in her article for Business Insider, “An obscure court ruling might totally destroy a new ‘revenge porn’ site.”
If a revenge pornography website is sued and the court holds that it is not shielded by the Communications Decency Act, then the website operators could be liable for numerous torts, including but not limited to:  copyright infringement, invasion of privacy, intentional infliction of emotional distress, and civil conspiracy (if the website is maintained by multiple people who are acting in concert to commit torts).
If a judgment is rendered against a revenge pornographer, then the plaintiff becomes a creditor and can seize the revenge pornographer’s assets for years to come in accordance with state law.  Revenge pornographers get to look forward to wage garnishments, liens against and foreclosures of their property, interception of their tax returns, the draining of their bank accounts, and the ruining of their credit scores.
Of eleven well-known revenge pornography websites, two were shut down through my hard work, one has been sued and shut down by Attorney John Morgan, one was voluntarily deactivated by a revenge pornographer after the FBI launched a criminal investigation, one was sued by Attorney Jason Van Dyke and forever lost its ability to be hosted on the domain addresses of numerous countries, one is involved in an intellectual property-related lawsuit that is currently pending, two were voluntarily shut down by revenge pornographers after another website in their control was sued, and two were voluntarily shut down after the revenge pornographers' identities were exposed.
I again restate what I told the Colorado Springs Independent in January of 2013:  “The days of the revenge porn industry are limited. . . . The house of cards is coming down.”