Congress Failed Katie Hill | Opinion

The publication of nude photos of Congresswoman Katie Hill and her subsequent resignation has prompted a flurry of questions: Who leaked the photos? Was Hill a victim of a crime? Should she have resigned? What are her legal options?

One important question about what happened to her, however, has rarely been asked: Could it have been prevented?

Whether violations of intimate privacy can be deterred is an essential question because the harm inflicted by nonconsensual pornography (often misleadingly referred to as "revenge porn") is immediate and irreparable. Victims cannot get back the privacy they have lost or be truly compensated for the trauma, anxiety, reputational damage, loss of professional and educational opportunities, and physical endangerment they commonly face.

When victims reach out to my nonprofit organization, the Cyber Civil Rights Initiative (CCRI), we discuss their various options: to talk to someone, to pursue litigation, to request the removal of images, to seek criminal charges. But what most victims want more than anything is the one thing no one can provide: for this never to have happened.

Can we deter people from engaging in this life-destroying abuse? Yes. And in 2017, CCRI conducted a national study that offered important insights into how. The survey revealed that nonconsensual pornography is a shockingly common form of abuse: One in eight adult social media users has either experienced or been threatened with nonconsensual pornography, and one in 20 admits to engaging in it. The survey also asked respondents who admitted to engaging in nonconsensual pornography what might have stopped them from doing so. The majority of them indicated that out of a list of a dozen or so possible factors, severe criminal penalties would have been the most effective deterrent. In particular, 52 percent indicated that the existence of a federal criminal law would have stopped them.

Let that statistic sink in. More than half of respondents said they would not have disclosed nude photos without consent if there had been a federal criminal law banning it.

But there is, as yet, no such law. That is not for lack of trying. I began working with the office of Democratic Congresswoman Jackie Speier of California to draft the first federal bill criminalizing nonconsensual pornography, the Intimate Privacy Protection Act, in 2014. The bill was introduced in July 2016 but never brought to a vote. The bipartisan law was slightly modified and re-introduced in 2017 as the ENOUGH Act but again never brought to a vote. On May 2019, an updated version of the law, now titled the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act, was introduced for the third time in Congress. It has yet to be voted on.

Consider this: If Congress had acted in 2016, or 2017, or even in May 2019, it is possible that Katie Hill—as well as hundreds, maybe thousands, of other women and men—would have been spared the devastating impact of nonconsensual pornography.

Outside of Congress, there has been remarkable progress on the issue in recent years. In 2013, when CCRI began its push for the criminalization of nonconsensual pornography, only three states had laws against it. Today, that number is 46, plus the District of Columbia. CCRI also helped bring about major reform in the tech industry: Following our presentation at a cross-industry summit on nonconsensual pornography in 2015, Google, Facebook, Twitter and Reddit all banned the material from their platforms. CCRI and other advocacy organizations have also been successful in raising public awareness about the abuse.

But as the case of Hill has demonstrated, these successes are limited. Many people continue to blame the victims of nonconsensual pornography; unauthorized private images still circulate widely on social media platforms and appear in search engine results; and state laws present a confusing patchwork of competing definitions and varying penalties for the crime.

The most serious flaw of the majority of state laws is that they require that a perpetrator act with the specific, explicit motive to harm or harass the victim—taking the colloquialism "revenge porn" far too literally. In Hill's case, laws with such requirements leave the publishers of her nude photos off the hook, as the RedState blog and subsequent distributors can plausibly deny acting with any personal malice toward Hill. Such requirements confuse the violation of privacy involved in every case of nonconsensual pornography with the harassment involved in some cases.

By contrast, the proposed federal bill against nonconsensual pornography properly treats nonconsensual pornography for what it is: a violation of privacy. The bill does not allow perpetrators who distribute private imagery for political gain, profit or entertainment to act with impunity. It also relieves victims of the pressure to navigate the complex state jurisdictional issues created by borderless crimes like nonconsensual pornography.

The explanation for Congress's failure to pass this bill is no doubt multifaceted. But one key factor is the staunch opposition of the American Civil Liberties Union. The ACLU has led the effort to defeat or dilute criminal legislation against nonconsensual pornography at both the federal and state level, often joined by the Electronic Frontier Foundation, the Media Coalition, the Motion Picture Association of America and, in some cases, tech companies.

The ACLU has justified its stance by characterizing nonconsensual pornography as a free speech issue, even though the Supreme Court has never held that there is a First Amendment right to distribute naked photos of another person without consent. Indeed, there is a longstanding recognition in this country that the right to privacy is essential to, not in conflict with, the right to free speech: If we have to live in fear that our most intimate moments could be exposed without consent, we could never speak freely.

The ACLU itself is a passionate defender of the right to privacy when it comes to other forms of sensitive information. It supports laws that prohibit unauthorized disclosures of Social Security numbers, medical records, genetic information and even geolocation data. The ACLU does not claim that there is a First Amendment right to distribute these kinds of private data without consent, nor does it demand that these laws only punish perpetrators who act with the intent to harass their victims.

Given the gendered nature of nonconsensual pornography (victims are more likely to be female, and perpetrators to be male) and its gendered impact (women tend to suffer much more negative consequences when they are victimized than men do), it is hard to avoid the conclusion that the ACLU simply does not value women's privacy as much as men's. And Congress has for years allowed itself to be cowed by the ACLU's position.

The failure of Congress to act has deprived our society of a powerful form of deterrence against this devastating abuse. Now, the lack of a federal criminal law has contributed to the ease with which a powerful, young, female politician was attacked with private, intimate photos.

It is too late to save Katie Hill and countless other victims of nonconsensual pornography. But if Congress finally passes the SHIELD Act, it may be in time to save the next one.

Mary Anne Franks is a professor of law at the University of Miami and president of the Cyber Civil Rights Initiative. She is also the author of The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech.

The views expressed in this article are the writer's own.