The fight against “revenge porn” chalked up a small victory recently. So why am I not celebrating?
The Federal Trade Commission released a statement saying it had barred Craig Brittain, a Colorado man, from posting nude images of women to his website without their written consent. We are by now familiar with the concept of what’s broadly known as “revenge porn,” that is, posting explicit images online of people — women, mostly — without their knowledge or permission. The practice has swept up celebrities such as Scarlett Johansson, Rihanna and Jennifer Lawrence, putting the issue on the national radar.
Sometimes the images are stolen by hackers able to access phones, computers or clouds; in other cases, they may have, at one time, been willingly shared with a romantic partner who, after the relationship ends, seeks to enact “revenge” by making those private images public.
The FTC’s move is a positive step toward punishing these acts, mostly because it symbolizes that the federal government recognizes the seriousness of the violation. But it doesn’t go far enough. Brittain was ordered to destroy the images he had in hand — and that’s it. He wasn’t fined or sent to jail. That’s because revenge porn isn’t a federal crime — Brittain was found in violation of the Federal Trade Commission Act, not in violation of criminal law.
As an agency of the U.S. government, the FTC can enforce federal laws but does not have the power to prosecute criminal cases on its own, instead referring cases to the FBI or a U.S. attorney’s office. But because revenge porn isn’t a federal crime, the punishments federal law enforcement can place on perpetrators are limited. And so the guy loses his pictures and has been told not to do it again. So what.
Currently, 16 states have laws addressing revenge porn, though some are broader than others. Prosecution often still depends on first determining who uploaded the photos — many of these sites allow for anonymous postings — and where the photo originated. If the photo was uploaded by a third party, the website may be protected from liability by the Communications Decency Act, the same federal law that protects news outlets from being held liable for online comments made by readers and other user-generated material.
A more effective law would be one that aims to protect personal information shared within the context of a confidential relationship and limits free speech to cover information that does not exploit the privacy of another private individual. (New Jersey’s law, gets at this — it makes it a felony for any person to disclose sexually explicit photos or images of someone else without that person’s consent.)
But until recently, a California revenge porn law did not protect victims who took the photos themselves, even if those photos were stolen or otherwise posted without their knowledge or consent. That wasn’t just ineffectual lawmaking, but full on victim blaming.
Indeed, when it comes to revenge porn, there is a lot of that going around. Think back to when Jennifer Lawrence and others had their nude, formerly private photos posted online. People asked why these women would be so careless as to take them, and send them, in the first place? What did they expect would happen?
Never mind that many of the photos had been originally shared with trusted partners, some of whom were still in these women’s lives, or that in at least one case, the stolen pictures in question had been deleted years ago. (There are some very skilled hackers out there.)
If they don’t exist, the logic goes, you’ve got nothing to worry about.
Nothing, that is, beyond buying into the idea that women who “put themselves in a compromising position,” in a way deserve whatever consequences result. It’s a short hop to the thinking that helps rapists avoid punishment because “she asked for it,” or “she didn’t say no,” or “just look at what she was wearing. Just look at how she’s acted in the past.”
There are many reasons to create stronger, clearer, federal criminal laws prohibiting the anonymous public posting of naked photographs of people who are not you. But perhaps the most important reason is to work toward eliminating, once and for all, the idea that victims of crimes bear any modicum of blame. Criminal invasion of privacy continues to occur because criminals exist, and they are not adequately punished. Curbing our own behavior only means they win.