When it comes to revenge porn — the uploading of nude pictures of an ex to skeezy websites — New York may be taking a page from California's legislative playbook, which recently passed a law banning the practice. And it may not be the only state.
University of Miami School of Law professor Mary Anne Franks, who serves on the board of the Cyber Civil Rights Initiative, an organization devoted to revenge porn legislation, says Maryland, Wisconsin, Alabama, Kansas, and Delaware have also reached out to the group to begin drafting proposals. In an encouraging sign, Franks says members of both parties have contacted her, hopefully precluding the kinds of partisan battles that can stall bills indefinitely.
More importantly, on the federal level, Sen. Barbara Boxer's (D-Calif.) office has expressed interest in revenge porn legislation, said Franks in an email. A federal criminal law would obviously be ideal, rather than going state-by-state, because it "would offer the greatest protection to the greatest number of victims and provide the strongest deterrent to this conduct," she said.
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With each new proposal, there is hope for improvement, especially since California's bill has been criticized for not providing enough protection to victims of revenge porn. The Golden State law does not pertain to photos or content that the victims took themselves, which means jilted lovers who post "selfies" taken by their exes are exempt from punishment.
New York actually has two proposals regarding revenge porn and both include "selfies" as punishable. One of the bill sponsors, State Sen. Phil Boyle (R), told 1010 WINS that "if a young woman takes a picture of herself, sends it to the boyfriend, a couple of years later he's posting it, that would be included under our legislation." Franks said she is hopeful the bill could take "as little as a couple of months to pass."
Unfortunately, it is hard to maintain the stringency of such proposals as they go through committee rounds. Holly Jacobs, the founder of the Cyber Civil Rights Initiative, said the California bill originally did provide protections for people who took the content themselves, but many legislators were resistant. She said a California legislative staff member essentially told her that "people who are stupid enough to take pictures of themselves are more difficult to argue for their expectation of privacy."
There are other battles ahead for revenge porn legislation. The First Amendment issues with the ban are well documented. Even the American Civil Liberties Union has expressed concern that such laws will unconstitutionally limit freedom of speech. Furthermore, revenge porn sites themselves are protected by laws that say third-party platforms are not liable for content posted by users.
However, Franks said the key to overcoming these obstacles is not working around the First Amendment, but rather getting people to "acknowledge the contextual nature of consent when it comes to sex."
She said people understood, for example, that when you give a waiter your credit card in a restaurant, that doesn't mean you have given the waiter permission to go shopping with it. Or, as the outrage over the National Security Agency's snooping shows, "using an internet search engine doesn't mean you've consented to handing over your personal information to the government."
Still, it will be a huge achievement if the movement can get New York to join California. As two of the three most populous states, nearly 20 percent of the population would be living under revenge porn laws. And that accounts for a lot of vindictive exes.
