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Law Prof Writing Revenge Porn Legislation Wants To Upend Safe Harbors On The Internet ‘For The Children’

It’s pretty much universally accepted that “revenge porn” is a bad thing and that steps should be taken to prevent the posting of someone’s private photos (usually along with contact info) at various websites that entertain the small minds that find this cathartic or fascinating or hilarious (and, of course, it’s even worse that many of these sites then try to charge people to take down their photos).

Unfortunately, because it’s so thoroughly reviled, attempts to curtail revenge porn tend to be poorly thought out. One bad law can do an awful lot of collateral damage — something those actively pushing legislative solutions tend to forget in their hurry to rid society of unpleasantness.

Mary Anne Franks, a law professor at the University of Miami, has been pushing to get revenge porn criminalized. To that end, she is helping draft a bill with an (unnamed) member of Congress. The problems with her proposed legislation are several. Houston defense attorney Mark Bennett has unpacked the First Amendment implications (mostly negative) of her proposed law in two excellent and thorough posts over at his blog, Defending People.

A overly-simplified reduction of Franks’ arguments in favor of the proposed law boils down to this: because it’s unpleasant and most people would find it offensive, it isn’t protected by the First Amendment. Bennett disassembles each point she makes and they all seem to come back to this.

Franks: “The First Amend­ment does not serve as a blan­ket pro­tec­tion for mali­cious, harm­ful con­duct sim­ply because such con­duct may have an expres­sive dimen­sion. Stalk­ing, harass­ment, voyeurism, and threats can all take the form of speech or expres­sion, yet the crim­i­nal­iza­tion of such con­duct is com­mon and care­fully crafted crim­i­nal statutes pro­hibit­ing this con­duct have not been held to vio­late First Amend­ment prin­ci­ples. The non-consensual dis­clo­sure of sex­u­ally inti­mate images is no different.”

There is a world of dif­fer­ence between “The First Amend­ment does not serve as a blan­ket pro­tec­tion for mali­cious, harm­ful con­duct” and “mali­cious, harm­ful con­duct is unprotected.”

Franks makes a num­ber of such asser­tions as “the non-consensual dis­clo­sure of sex­u­ally inti­mate images is no dif­fer­ent,” but stamp­ing her foot and insist­ing that it’s so doesn’t make it so. Even if a law pro­fes­sor is inca­pable, a com­pe­tent lawyer can always find a dif­fer­ence between two things. One impor­tant dif­fer­ence between the dis­clo­sure of sex­u­ally inti­mate images on the one hand, and the con­duct of harass­ment, threats, and stalk­ing on the other, is that a statute for­bid­ding the for­mer is nec­es­sar­ily content-based, so it must meet strict scrutiny.

“It’s kinda like harass­ment” doesn’t over­come the obsta­cle of strict scrutiny, espe­cially since the Supreme Court has never upheld a crim­i­nal harassment statute.

As Bennett details, Franks has approached this largely in the “activist” role, rather than a scholarly role. In doing so, she’s made arguments current case law just doesn’t back up. That itself is problematic considering she’s working with a Congress member to draft a law that will address an already-emotionally charged issue.

But it gets worse. Scott Greenfield points out a recent interview Franks did with US News and World Report, where she makes this troubling statement.

Websites that specialize in revenge pornography cannot currently be forced by state law to remove content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn’t violate federal copyright or criminal law.

“A lot of companies are under the impression they can’t be touched by state criminal laws,” Franks said, because “Section 230 trumps any state criminal law.”

The Communications Decency Act, however, doesn’t trump federal criminal law, she said, pointing to child pornography.

“The impact [of a federal law] for victims would be immediate,” Franks said. “If it became a federal criminal law that you can’t engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations.

“Hopefully,” she said, “we would develop a similar take-down notice regime that we see in a copyright context, which means that anytime a victim becomes aware that [their] picture is on one of these websites without their consent, [they] can notify the website, [they] can notify Google, [they] could notify all the people inadvertently helping the image get shown… that this is nonconsensual material and needs to be taken down.”

Having earlier questioned how long it would take Section 230 to fall in the face of anti-revenge porn efforts, Greenfield now has his answer.

Well, that didn’t take long at all. In their zeal to end revenge porn, which no one disputes is a blight on the internet, Franks and her ilk are more than happy to destroy free speech on the internet. After all, what’s free speech when compared to their feelings?

The US News article also contains quotes from Matt Zimmerman, senior staff attorney at the EFF, who logically points out that targeting intermediaries by bypassing (or removing) Section 230 protection is a terrible idea and will inflict collateral damage all over the internet. As he points out, companies will simply remove user content as quickly as possible whenever requested rather than be held legally or criminally accountable for hosting it. Additionally, there’s a good chance some platforms and hosting services will simply shut down altogether rather than have to play internet police 24/7.

Franks “rebutted” Zimmerman’s assertion, but from an oblique angle.

I do want to point out that neither the EFF nor the ACLU has expressed opposition to any specific law that I have personally drafted. I have sent my draft statutes to members of both organizations and am awaiting their responses.

Well, if the EFF and ACLU don’t think it’s a bad idea… Oh, wait. That’s not what she actually said. Greenfield breaks it down.

Notice the attempt to weasel out of reality, “any specific law that I have personally drafted”? Franks neglects to mention that she sent an email to an EFF non-lawyer advocate, who was never an appropriate person to contact and who didn’t respond to her personal email, and has tried to parlay this by claiming these organizations don’t oppose her, in a deliberate effort to mislead.

Franks is looking to do some serious damage to free speech with her proposed law. While it could be theorized that courts will buy her arguments about what the First Amendment does and doesn’t protect (troubling in its own way), this proposed attack on Section 230 Safe Harbor is bad news no matter how you look at it. The fact that she brings up child pornography is another indication that advocating for this law has very little to do with ensuring standing protections remain as unscathed as possible.

Politicians and special interest groups have often used “for the children” as an excuse for all sorts of legislative havoc. After all, who’s going to defend child pornography? It’s a disingenuous rhetorical tactic that equates Pet Issue A with The Worst Thing on the Internet in order to paint opponents as child porn sympathizers. But as Greenfield says, what are rights compared to feelings? Revenge porn is bad, and those arguing against legislative measures like Franks’ are frequently portrayed as misogynists trying to ensure their abuse of women continues uninterrupted. Here’s Franks herself on the subject:

But then there’s a whole category of people who aren’t confused at all – let’s call this the “threatened sexist” category. To explain this, we have to back up a bit and take note of the fact that non-consensual pornography, like rape, domestic violence, and sexual harassment, is overwhelmingly (though of course not exclusively) targeted at women and girls. So you get some people who might cynically invoke the First Amendment or raise disingenuous questions about scope, but who are really just hostile to anything that makes it harder to treat women as second-class citizens, especially when it comes to sex.

There’s also some indication that Franks, like many others who aggressively advocate for laws that will fundamentally alter the way the internet runs, doesn’t have a solid grasp on the very area she’s attempting to regulate. She makes the following statement, which follows shortly after her above assertion that opponents will make “cynical arguments” about the First Amendment.

These are people who fully understand that a great number of our personal, social, and legal interactions are premised on the idea of contextual consent. They would never argue that a customer who gives his credit card to a waiter has given the waiter the right to use that credit card to buy himself a motorcycle. They would never argue that the fact that a person voluntarily gave personal information to a cellphone gives that provider the right to hand that information over to, say, the NSA.

As commenter Ken Arromdee points out, this statement is beyond obtuse.

You do realize that this is known as the third party doctrine, and is the actual reason used to justify government spying, right?

Greenfield asks when other law professors are going to step up and call Franks out for her bullshit. The answer, sadly, may be “never.” Franks’ own statements show she’s more than willing to call any opponent a misogynist, something that can easily spell the end of an academic career. No one in this field is in a hurry to get smeared as a revenge/child porn proponent. Even more discouraging — if this legislation ever hits the floor for a vote — very few politicians will be willing to oppose this and end up labeled misogynist or simply “soft” on revenge porn, no matter how damaging the outcome will be for the First Amendment and the Section 230 Safe Harbors.

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Lessons Learned From Adam Lanza’s Video Game Obsession: Blame Dance Dance Revolution

The Sandy Hook massacre has been back in the news as of late for a multitude of reasons. The anniversary of the shooting is coming up soon. Someone decided to release a game associated with the tragedy to send a message and everyone lost their damn mi… Continue reading

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Book Review: Developing RESTful Services with JAX-RS 2.0, WebSockets, and JSON

I was particularly interested in accepting Packt Publishing’s offer to provide a book review of Masoud Kalali’s and Bhakti Mehta’s Developing RESTful Services with JAX-RS 2.0, WebSockets, and JSON because its title mentions three things I have had good… Continue reading

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NSA Spied On Porn Habits Of ‘Radicalizers,’ Planned To Use Details To Embarrass Them

The latest report on leaked Snowden docs from Glenn Greenwald (along with Ryan Gallagher and Ryan Grim at the Huffington Post) shows how the NSA had a plan to use the porn surfing habits of certain people they didn’t like to discredit them. If this bri… Continue reading

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Judge Halts Sentencing After Feds Admit They Failed To Reveal Use Of NSA Data

We’ve been following the crazy story of the Solicitor General of the US, Donald Verrilli, making blatantly false statements to the Supreme Court concerning how the feds would have to reveal to defendants that some of the evidence used against them came… Continue reading

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Resistance Grows To Inclusion Of Corporate Sovereignty In Canada-EU Trade Agreement (CETA)

Remember CETA, the Canada-EU trade agreement, officially known as “Comprehensive Economic and Trade Agreement”? You could be forgiven for losing track of where things were with the negotiations, which have been dragging on since 2009, but a kind of milestone was passed recently:

Commission President José Manuel Barroso and Canadian Prime Minister Stephen Harper have today reached a political agreement on the key elements of a Comprehensive Economic and Trade Agreement (CETA) after months of intense negotiations between EU Trade Commissioner De Gucht and Canadian trade Minister Ed Fast. It will be the first free trade agreement between the European Union and a G8 country.

Despite that “political agreement”, there still remains plenty to be done, as this CBC article explains:

Some areas of the agreement still need drafting, while others need fine-tuning, reporters learned through a briefing. But the most contentious points have been settled. The agreement text then has to be drafted, run past lawyers and translated into 24 languages for the 28 EU countries to examine. The document Harper and Barroso signed Friday is an agreement in principle and full ratification is likely two years away.

Although the CBC post claims “the most contentious points have been settled”, that’s not true for one of the most controversial areas: corporate sovereignty, officially known as investor-state dispute settlement — and resistance is building. For example, the European Trade Union Confederation, which claims to represent more than 60 million workers in Europe, “strongly opposes the inclusion of ISDS in CETA.” And as negotiations on the ISDS chapter begin, over 80 organizations have put together a “transatlantic statement” calling for the corporate sovereignty chapter to be withdrawn from CETA completely:

As European and Canadian trade officials meet again in Brussels today to continue negotiating an investment protection chapter in the Comprehensive Economic and Trade Agreement (CETA), transatlantic civil society groups are demanding that this chapter be removed entirely as an affront to democracy, an attack on the independent judiciary, and a threat to climate change and our shared environment.

The CETA “will include a controversial and unnecessary investment protection chapter and investor-to-state dispute settlement process (ISDS) that a growing number of countries are rejecting for good reasons,” says the transatlantic statement, which is endorsed by more than 80 organizations in the European Union, Canada and Quebec. “These excessive corporate protections, built into thousands of investment treaties and free trade agreements, serve no social or economic purpose other than to undermine our democratic rights to decide public policy and public interest regulation.”

The accompanying statement (pdf) provides a useful summary of why the inclusion of corporate sovereignty in so-called trade agreements is so worrying. Here are some of the main points:

CETA will permanently freeze existing rules governing investment and then strictly limit government regulation of services, investment, natural resources, environmental protection and public safety measures in the interests of corporations. All existing government policies in all these areas that have not been excluded from the agreement up front will be covered, making it difficult for countries to introduce new services or regulations in the future that affect however modestly the investment opportunities of foreign companies and investors.

In fact, changes to regulations are still possible, but the ISDS chapter means in practice that they will always be in favor of corporations, not the public. That’s because the intentional asymmetry of corporate sovereignty allows companies to sue a government for unlimited sums when they don’t like changes in regulations, but the public has no equivalent rights. This naturally encourages governments to listen to corporations and ignore its citizens.

There is no comfort in claims by the Commission or Canadian government that “frivolous” claims, or challenges to environmental policy, will be filtered out. Despite efforts in the North American Free Trade Agreement (NAFTA) to limit what kinds of government decisions might violate an investor’s minimum standards of treatment or other investment chapter protections, Canada continues to face investor-state disputes attacking environmental measures that affect national and foreign investors in exactly the same way (e.g. a partial moratorium on shale gas extraction in Quebec).

The declaration has a good explanation why this happens:

Likewise, we are not satisfied by efforts to limit the meaning of “indirect expropriation” so that legitimate public welfare objectives should be immune from investor challenges. The final determination is always made by the private investment tribunals themselves, and these unaccountable tribunals have a built-in bias toward the interests of multinational corporations.

Techdirt readers may recall that it was precisely this concept of indirect “expropriation” that Eli Lilly invoked when suing Canada under NAFTA’s ISDS section. As the declaration rightly notes, the lawyers who make up ISDS tribunals are inherently biased in favor of corporations because they can represent the same companies in other corporate sovereignty cases — an extraordinary conflict of interest. Finally, the declaration points out why it is really important to remove the ISDS chapter from CETA before the final ratification:

Whatever the EU gets away with in CETA, including on investment protection, will just create a new ground floor on which multinational corporations will build even more.

The way all these agreements work is that they seek to take the results of previous treaties as a baseline, and then go beyond them — but always in favor of big business, never to the benefit of the public. That means one of the best ways of fighting corporate sovereignty in TAFTA/TTIP is to make sure it’s taken out of CETA.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Suitcase-Sized Drones Extend And Deepen OpenStreetMap’s Coverage

An increasing number of online services use location information. This places suppliers like Google, with its Google Maps, in a strong position, since creating such geodata for entire countries — or the world — is something that can only be undertak… Continue reading

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DailyDirt: Will Renewable Energy Be Enough To Curb Global Warming?

According to the latest report from the Intergovernmental Panel on Climate Change, scientists are 95% certain that human activities have been responsible for most of the climate change observed on the planet since the 1950s. Apparently, we’ve already burned 54% of the 1 trillion tons of carbon that would need to be emitted into the atmosphere to increase the average global temperature by 2°C (3.6°F) — a threshold set by climate negotiators in Copenhagen in 2009 to avoid catastrophic climate change. Unfortunately, even as we try to reduce carbon emissions now, some predict that we’ll still surpass the 2°C limit by the end of the century. Will renewable energy be able to curb global warming while also satisfying our energy-hungry ways? Here are some energy-related links.

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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Public Citizen Suing On Behalf Of Customers Whose Credit Was Ruined By KlearGear’s $3,500 ‘Bad Review’ Fee

KlearGear’s decision to charge a customer $3,500 for writing a negative review has finally paid off for the company. Whoever was in charge of inserting a non-disparagement clause into the site’s Terms of Sale back in June of 2012 set in motion the wor… Continue reading

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If You Don’t Care About The NSA Because You ‘Haven’t Done Anything Wrong,’ You’re Wrong

Cardinal Richelieu’s famous line is: If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him. It’s easy to twist almost anything to be used against you if someone cares enough. And wit… Continue reading

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