This essay first appeared in Cliterati on October 13th; I have modified it slightly to fit the format of this blog.
While the internet is the greatest mass-communication innovation since the printing press, it has also created a few social problems that did not previously exist. Unfortunately, the attempts of Luddites and control freaks to deal with these issues resemble, as do so many other governmental attempts to “do something”, an attempt to break an egg with a sledgehammer. Take “revenge porn”, for example. For those who are blissfully unaware of this rather nasty little phenomenon, it’s the practice of uploading sexy photos of exes to the internet in order to expose them to public humiliation and even to damage them economically, since many prospective employers, licensors and the like now routinely attempt to dig up all the dirt they can via Google. Nor is this economic damage merely passive: about a year ago the twisted minds of those who run these sites recognized that they could charge people hefty fees to take down their pictures. Technically, this isn’t blackmail, which is defined as demanding payment not to reveal something; these pictures have already been revealed. Furthermore, the charges are disguised as “service fees”, just as banks claim it really costs them $25 or more to deal with a bounced check. But because sex is involved, it was a safe bet politicians wouldn’t ignore the issue for long, and because they are politicians, it was a safe bet the response would be neither reasonable nor moderate. But as Dr. Brooke Magnanti points out, the issue isn’t as simple as they pretend:
…The American Civil Liberties Union opposed the first draft of California’s revenge porn bill on [free speech] grounds. Florida also rejected a similar bill earlier this year…as long as nude pictures are considered objects of shame, we have a problem…And as ever, laws that monitor anything to do with sex have a nasty habit of being misused by police to bring trumped-up convictions. While a fine seems eminently reasonable to discourage this undesirable behaviour, jail time does not. If the victim must show they suffered emotional distress or humiliation, surely this would be better handled in civil rather than criminal law? And…with California’s already overcrowded penal system suffering the effects of the “war on drugs”, can they really afford a “war on revenge”?
Noted free speech attorney Marc Randazza agrees that civil law is the proper vehicle here, and if California insists on “doing something”, maybe that “something” should be banning discrimination against people for having taken sexy pictures or video in the first place. But while (as so often happens) California was first out of the gate, it didn’t take long for New York to follow with a “significantly improved” version which would not only increase the penalty to $30,000, but also (as Scott Greenfield explains) extend to people who post their own nude photos:
“…California’s law…can only be used to prosecute individuals who personally took naked photos of someone else and then disseminated the images against the subjects’ will, New York’s proposition would…apply to making sexually explicit self-portraits public”…[the bill’s sponsors] have gone so far as to issue a press release about their plan to save people from themselves, explaining how they will make a more perfect world. “…the majority of its victims are women who don’t know that their images and likenesses has been bartered and sold over the internet…Criminalization is preferable to civil suits…because civil suits do not deter those who upload or disclose new images after a…suit has ended…This bill is narrowly drawn so as not to infringe on First Amendment rights”…So the nice gal who revealed Anthony Weiner’s selfies is a criminal?…
Did you note the “sex trafficking” undertones there (“victims…bartered and sold over the internet”)? That’s courtesy of one of the bill’s chief architects, a Florida law professor and neofeminist named Mary Anne Franks who interned under Catharine MacKinnon and has written a long string of articles on porn, “sexual harassment” and other favorite neofeminist targets (she has never actually practiced law). But while Franks and her bluenosed cronies are busy promoting a law which will also criminalize escort advertising and online porn, they have largely ignored a very similar, equally sleazy online racket because it doesn’t involve sex and affects far more men than women:
…a handful of…[mug shot aggregator websites] routinely show up high in Google searches…[their] ostensible point…is to give the public a quick way to glean the unsavory history of a neighbor, a potential date or anyone else…[but they] make money…by charging a fee [of up to $400] to remove the image…To…millions…now captured on one or more of these sites, this sounds like extortion. Mug shots are merely artifacts of an arrest, not proof of a conviction, and many people whose images are now on display were never found guilty, or the charges against them were dropped. But these pictures can cause serious reputational damage…
When the New York Times contacted the companies who enable this extortion, an interesting thing happened:
Initially, a Google spokesman…fielded questions…with a statement that amounted to an empathetic shrug…Two days later, he wrote…that the sites…run afoul of a Google guideline…[and] the company …[has introduced an] algorithm change…[to disfavor the sites in image searches]…officials at MasterCard…contacted the merchant bank that handles all of its largest mug-shot site accounts and urged it to drop them as customers…PayPal came back with a similar response…American Express and Discover…both…said they were severing relationships with mug-shot sites. A representative of Visa wrote to say it was asking merchant banks to investigate business practices of the sites…
In other words, businesses handled the problem far more quickly and effectively than legislators ever could, and without giving cops and prosecutors a new weapon to use against people who never hurt anyone; “revenge porn” could easily be handled in exactly this same way. But doesn’t this, as some reporters have opined, amount to censorship? Mike Riggs argues otherwise:
…The case against releasing mugshots was probably made most effectively in 1999 by the U.S. District Court of the Eastern District of Louisiana, which ruled against releasing the mugshot of Edward J. DeBartolo, Jr…In its ruling, the court…noted that mugshots [are]…”intended for the use of a particular group…of persons”…Like fingerprints, mugshots are used by law enforcement to identify people. Over time, the press began to treat them as “public documents,” and some courts have agreed. It’s clearly time to renegotiate that claim. Two decades ago, unless you were a celebrity or a nobody accused of a particularly heinous crime, your mugshot wasn’t worth much. Today, it’s worth something to a lot of different parties: mugshot sites want to bank on prying eyes, neighbors want to know more about their neighbors, etc…Yet people lived without having this information at their fingertips until about 2010, when the first of the mugshot sites began to pop up…Making [mugshots] publicly available turns an investigative tool into a lifelong punishment.
I concur, but I’d like to borrow one further argument from Radley Balko:
…The names of misbehaving prosecutors are rarely if ever included in…court opinions that find misconduct…Some prosecutors argue that they should be protected from false allegations…[but Ken White of Popehat] said…”You’re dealing with a justice system where the defendant never gets that kind of protection of anonymity. There’s no delay in releasing his name until he’s actually convicted. Instead, prosecutors put out press releases and make public statements about the accused. I just don’t think there’s a legitimate argument you can make as to why prosecutors should get more protection…than defendants do”…
If “authorities” want to argue that people’s reputations deserve protection from false accusations, surely equality under the law demands that all citizens deserve that same protection? And if they think the posting of a mere nude photo, which does not in itself constitute an accusation of wrongdoing, should be a criminal offense, what about all the police and other “official” websites which post far more damaging photographs (which are then scooped up by mugshot sites)? Surely they should be criminally prosecuted as well? Of course, this will never happen; government repeatedly grants to even its most minor actors immunity from the edicts by which it establishes universal criminality for the rest of us. But the only way there will ever be even the slightest chance of change is for people to wake up and recognize the true intent of every law our rulers present as intended to “protect” us.