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 Texxxan.com 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. Roommates.com, 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.”