A new bill in Florida would make it a felony to publish online nude photos or videos of a person without his or her permission and with his or her identifying information. That's a step in the right direction towards slowing the proliferation of the exceedingly icky "revenge porn" Internet sewage spill that has made unrepentant creeps like Hunter Moore rich, while ruining the lives of women and men whose only discernable crime was to share nude photos with a resentful ex.


Salon's Tracy Clark-Flory explains that the Florida bill comes as activists around the country are pushing state and federal lawmakers to criminalize what they call "non-consensual porn." In January, the fight against non-consensual porn received a lot of national attention when 23 women in Texas filed a class action lawsuit against Go Daddy-hosted revenge porn site, Texxxan.com.

Currently, victims of revenge porn do have legal recourse should their scandalizing selfies find their way into the Internet's morass of masturbatory visual aids. However, the various civil options for fighting someone who has posted pictures or videos to a revenge porn site can be expensive and complicated, which in turn does little to dissuade basement-lurking troglodytes from posting all the revenge porn they have access to.


Speaking to Erica Johnstone, co-founder of the nonprofit Without My Consent, Flory writes that the Communications Decency Act protects website operators from liability "for content submitted by outside parties," which is pretty much all a revenge porn site is in the first place. Since revenge porn content is usually posted anonymously, a subpoena is required in order to obtain the poster's IP address, which is how a court might end up hearing a curious case lawsuit such as Doe vs. Doe (the plaintiff's name is also prevented from entering the court's record). According to Jonhstone, nobody really knows how to deal with such cases because there's no precedent.

And all that anonymous litigation doesn't even address the issue of court costs:

"It can cost tens of thousands before even proceeding to a judgment," she says. Even in the case of a default judgment, she [Jonhstone] says, "These defendants are often judgment proof. They're just basement-dwellers." In other words, "they have nothing to lose, which is why they engage in this behavior in the first place," she says. So, you might end up with a six-figure judgment that the plaintiff can never collect. There's much more leverage with criminal prosecution. "Even if people aren't afraid of being sued because they have nothing to lose, they are afraid of being convicted of a crime because that shows up on their record forever," says Johnstone. "A lot of times it's the police and district attorneys that really have the leverage to stop this kind of behavior."

Unless revenge porn posters — not likely to have a lot of social collateral to put up in a civil suit — fear that they'll be shuffled off to prison for their Internet indiscretions, there's only so much revenge porn victims can do to exact justice. The Florida bill is a step in the right direction, but only a step, according to legal analysts University of Miami law professor Mary Anne Franks. Franks says that, although the bill does a good job at recognize "contextual consent" — that someone would agree to having pictures or video of them taken in a private context but not to be shared with every Morlock in America — it doesn't adequately define nudity, and that might spell trouble further down the line:

For example, the bill applies to "any photograph or video of an individual which depicts nudity," but doesn't define nudity. It's "an extremely broad formulation that could potentially include a photograph of someone standing next to a picture of Botticelli's Venus," says Franks. At the same time, it's "a narrow definition, in that it would presumably not apply to depictions of graphic sexual activity unless certain parts of the body are visible," she says. Franks tells me of an actual case in which a man ejaculated on his sleeping girlfriend's face and then uploaded pictures to the Internet - that would not violate Florida's law.


The bill also isn't clear about photos or videos taken in public, which would mean that the much-discussed creepshots photo series might not fall into the bill's purview. Some pretty tricky legal maneuvering still has to be done, too, because the ability to create, post, and consume as many variations of porn as possible is part of our sacred First Amendment rights. If you think the Founders would have wanted us to restrict our ability to post revenge porn, you simply don't know anything about the proliferation of ankle and mid-calf creep sketches of the late 18th century.


Criminalizing "revenge porn" [Salon]