Up until this month, revenge porn wasn’t criminalized in New York City, and there are still 11 states without laws criminalizing the unwanted distribution of private images. But on Tuesday, four US Senators introduced a revenge porn bill, titled ENOUGH, the Ending Nonconsensual Online User Graphic Harassment Act. The bill was introduced by Senators Kamala Harris (D-CA), Richard Burr (R-NC), and Amy Klobuchar (D-MN), alongside Rep. Jackie Speier (D-CA).
Rep. Speier introduced an earlier version of this bill—the Intimate Privacy Protection Act—in 2016, but it never became a law. ENOUGH is “essentially the same” as Speier’s previously introduced bill, according to Mary Anne Franks, a professor at the University of Miami School of Law and a director at the Cyber Civil Rights Initiative. But according to Franks, the 2016 bill was “clearer and slightly more carefully drafted,” compared to the bill introduced today.
It’s difficult to draft revenge porn legislation that is effective in protecting victims in a variety of circumstances, as Jezebel has pointed out. While Franks believes the ENOUGH act “is desperately needed to deter this destructive violation of intimate privacy,” there is still room for improvement.
This bill applies to both original images as well as modified formats, which Franks says “raises the question about scope and application.” She believes that while manipulated images are still an important issue to tackle, they are better dealt with as a form of defamation. What’s more, the title of the bill includes the term “harassment,” which Franks finds misleading. She says the bill was “deliberately drafted to reflect the fact that the prohibited conduct is not harassment, but the violation of privacy.”
The ACLU argues that the first amendment protects nonconsensual photography, and to appease this belief, legislators may write laws that more narrowly focus on intent instead of a privacy violation—which is more difficult to prove, and doesn’t encompass many victims of revenge porn. A press release announcing the bill even notes that it aims to “strike an effective balance between protecting the victims of these serious privacy violations and ensuring that vibrant online speech is not burdened.”
In order for a defendant to be prosecuted under this act, there would need to be proof that the perpetrator both knew the victim didn’t want the image to be shared and also that they would be harmed by its dissemination.
“I don’t see anything in the First Amendment that says there has to be an intent to cause harm to the victim,” Professor Erwin Chemerinsky, dean of the University of California Berkeley School of Law, said at the 2017 US Department of Justice Cybercrime Symposium in regards to IPPA. “If the material is intentionally or recklessly made publicly available, I think that is sufficient, and I don’t think it should just be about intent to cause harm to the victim. Imagine that the person is putting the material online for profit or personal gain. That should be just as objectionable as to cause harm to the victim.”
It’s about time there was a federal law against revenge porn in the United States. A 2016 survey found that about four percent of Americans have been victims of it, or threatened to have their intimate images shared online. Tech companies are beginning to implement new tools to combat the spread of nonconsensual explicit content on their platforms, but beyond the risk of getting your social media account suspended, consequences vary by state and city. While it remains to be seen if the legislation will pass—Speier’s previous effort failed—it’s reassuring to see a continued push against this gross invasion of privacy.
Correction: An earlier version noted the bill required an “intent to harm.” It only requires that a perpetrator know there was a risk that sharing the image could harm the victim, regardless of the perpetrator’s motive.