It’s Time For Congress To Protect Intimate Privacy
(This piece is cross-posted from The Huffington Post.)
The recognition that the right to privacy extends to intimate photographs and videos is one step closer to becoming reality. On July 14, 2016, Congresswoman Jackie Speier (D-CA) introduced the Intimate Privacy Protection Act (IPPA). If passed, the bill would make it a crime to distribute private, sexually explicit photographs or videos of people without consent. In a press release about the bill, Congresswoman Speier said, “The damage caused by these attacks can crush careers, tear apart families, and, in the worst cases, has led to suicide. What makes these acts even more despicable is that many predators have gleefully acknowledged that the vast majority of their victims have no way to fight back. … My bill will fix that appalling legal failure.”
The Cyber Civil Rights Initiative is proud to have worked closely with Rep. Speier’s office in the drafting of this urgently needed legislation. Several CCRI members spoke at the press conference announcing the bill, including CCRI’s President and Founder Dr. Holly Jacobs, Vice-President and Legislative & Tech Policy Director Dr. Mary Anne Franks, Carrie Goldberg, and Anisha Vora. As of July 16,2016, this bipartisan bill has eight co-sponsors, including Reps. Katherine Clark (D-MA), Ryan Costello (R-PA), Gregory Meeks (D-NY), and Thomas Rooney (R-FL). The bill is the product of extensive collaboration with constitutional scholars, tech industry leaders, civil liberties groups, and victims’ advocacy organizations. In addition to CCRI, the bill is supported by Facebook, Twitter, the National Organization for Women, the National Democratic Institute, the Information Technology and Innovation Foundation, Feminist Majority, and Girls, Inc.
Much progress has been made in the United States with regard to nonconsensual pornography since CCRI began its work in 2013. We at CCRI have advised legislators in more than 30 states in their efforts to draft legislation to protect sexual privacy, and the number of states with laws addressing nonconsensual pornography has increased from 3 to 34 in that time. Unfortunately, a number of these state laws are flawed. Many fail to recognize nonconsensual pornography as a privacy violation, some fail to provide adequate constitutional safeguards, and none can be a complete response to this borderless phenomenon. A federal law is necessary to provide clarity, deterrence, and efficiency in addressing this crime.
The Intimate Privacy Protection Act does exactly what its title suggests: it recognizes that the right to privacy extends to sexual information. Numerous privacy laws protect the confidentiality of medical records, financial information, and many other forms of sensitive information. But existing laws offer much less protection for our most sensitive information: private photographs and videos of nudity or sexual activity. IPPA seeks to change that.
A handful of civil liberties groups, most notably the ACLU, have attempted to discredit and even defeat laws that would protect thousands of individuals from sexual exploitation. They have often attempted to do so in the name of the First Amendment. Their claims that IPPA, and state laws that resemble it, are overly broad or chill free speech have been unequivocally rejected by constitutional law experts. These include Professor Erwin Chemerinsky, Dean of UC Irvine School of Law, who, in addition to being one of the most influential legal scholars in the country, has argued several cases in front of the Supreme Court. According to Professor Chemerinsky, “There is no First Amendment problem with this bill. The First Amendment does not protect a right to invade a person’s privacy by publicizing, without consent, nude photographs or videos of sexual activity.”Eugene Volokh, a First Amendment expert and professor at UCLA School of Law who is well known for his skepticism of “most privacy-based speech restrictions,”stated that the Intimate Privacy Protection Act is “quite narrow, and pretty clearly defined.” Neil Richards, a First Amendment and privacy scholar and professor at Washington University School of Law, called IPPA “a very well-drafted law.”
Likewise, claims that the Intimate Privacy Protection Act will stifle the tech industry have been contradicted by the fact that major leaders in the industry support the bill. These include both Facebook and Twitter. According to Amanda Faulkner, US Public Policy Manager of Twitter, the company is “glad to see Rep. Speier and so many of our safety partners taking the lead on this important issue, and we’re proud to stand with them in support of this legislation.”
The overwhelming support for the bill from experts and stakeholders has forced its few critics to resort to desperate tactics, in particular appealing to deliberately misleading terminology and farfetched hypotheticals. Representatives of the ACLU have insisted that the bill must explicitly include language about “malicious intent.” But such language isn’t found in other privacy laws, including many supported by the ACLU itself. That is because privacy laws recognize that the act of knowingly invading the privacy of another is itself malicious. When compelled to clarify, critics have admitted that their real demand is a motive requirement, and a remarkably arbitrary one at that. According to the ACLU, nonconsensual pornography should only be prohibited if the offender intends to harass the victim.
The absurdity of this position is evident when one considers the range of motives offenders have for violating victims’ privacy. For example, revenge porn site owners, rapists who send naked photos of their victims to their friends, and police officers who pass around intimate photos taken from the phones of women they’ve detained are not trying to harass their victims. The unauthorized disclosure of private information is no less harmful or less deserving of punishment when it is motivated by a desire for money, to gain reputational status, or to provide “entertainment.”
Insisting on an arbitrary motive requirement completely unsupported by First Amendment doctrine is so patently absurd that critics are forced to turn, finally, to the cheapest tactic of all: the parade of horribles. Unable to find a reasonable ground for their objections, these critics invoke an increasingly implausible series of farfetched scenarios in the hopes of frightening their audience into a negative reaction. Hence the hysterical claims that this bill will mean prison sentences for anyone who shares baby pictures, publishes photographs of war crimes, or forwards photographic proof of politicians’ sexual impropriety. These wild speculations ignore the fact that the bill is extremely narrowly drafted and includes many exceptions. It does not apply to anyone who had no way of knowing that the person depicted did not consent to the distribution or to any disclosures made for lawful purposes, including disclosures made in the public interest.
Those unfamiliar with legal drafting might be forgiven for thinking that a law is invalid if it could ever be applied in an unpopular or unreasonable way. But those who study and practice law know that laws cannot be expressed as mathematical equations. No matter how carefully drafted a law is, there will always be hard cases. The Supreme Court has made this point clear: “there are limitations in the English language with respect to being both specific and manageably brief.” CSC v. Letter Carriers (1973). No statute can “satisfy those intent on finding fault at any cost,” but the Constitution does not require the satisfaction of impossible standards. What is required, rather, is that laws be “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.” In another case, the Court made clear that though “laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect – at best a prediction – cannot, with confidence, justify invalidating a statute on its face… overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma (1973). The plainly legitimate sweep of this statute is to prohibit the knowing distribution of private, sexually explicit photos and videos with reckless disregard for the victim’s lack of consent and for no justifiable purpose.
The criticisms aimed at this bill are depressingly familiar. The pretense of First Amendment concerns, the trivialization of the harm inflicted, the limitless sympathy for perpetrators and the utter indifference to victims – these same tactics have long been used to criticize legislation against domestic violence, sexual assault, stalking, and sexual harassment. Perhaps the most disturbing claim made by critics of the bill is that sexual consent is ambiguous and that people should never be punished for recklessly disregarding it. That dangerous logic has helped create the sexual assault crisis we are experiencing today, and has greatly contributed to the phenomenon of nonconsensual pornography itself. Consent always matters, whether for the sexual activity is physical or virtual, and there is simply no excuse for disregarding it.
We are deeply grateful to Congresswoman Speier, the co-sponsors of this bill, and all of the legal experts, advocacy groups, tech companies, and victims who have helped to bring this bill into existence. As Prof. Chemerinsky has stated, “The Intimate Privacy Protection Act needs to be passed by Congress to deal with a serious problem that has arisen with the development of the internet and social media: posting, without consent, of nude photographs and videos of sexual activity.” We join Prof. Chemerinsky in hoping that Congress will act quickly to enact this bipartisan, constitutionally sound, and necessary legislation.
By Dr. Mary Anne Franks
Legislative & Tech Policy Director, Cyber Civil Rights Initiative
Professor of Law, University of Miami School of Law
Follow Mary Anne Franks on Twitter: www.twitter.com/ma_franks