Another year, another batch of nude celebrity photos flooding headlines and the internet. This month, actress Jennifer Lawrence, model Kate Upton, and a handful of other female celebrities became the latest celebrity hack victims when an anonymous user on the online message board 4chan posted dozens of photos of the women nude. As with past leaks, the reaction has followed a similar pattern: the FBI looks for the poster and the media asks what can be done.
Between the Computer Fraud and Abuse Act and the Electronic Communications Privacy Act, the answer is a lot. In 2012, federal prosecutors used both to convict Christopher Chaney after he hacked and posted personal photos of the actress Scarlett Johansson online. Chaney is serving a 10 year prison sentence, but the legislative landscape has changed since his trial, including the criminalization of revenge porn.
This blog has covered these laws before, but to recap, revenge porn refers to distribution of sexually explicit media online without the consent of the pictured individual, for the purpose of humiliation. In the wake of this latest leak, there have been calls in the media to crack down on revenge porn posters and websites. To that effect, thirteen states have passed laws that make posting revenge porn a misdemeanor, while 27 more state legislatures have introduced similar bills in 2014. However, those calling for prosecutors to use revenge porn statutes against the celebrity hackers should pause to consider the challenge faced by another recent cyber speech proposal.
That proposal involves cyber bullying and a statute criminalizing it in Albany County, New York. This past July the state’s highest court struck down the county’s 2010 statute for defining cyber bullying too broadly and implicating the First Amendment. At issue in People v. Marquan M.[1] was whether the defendant, a 15-year-old boy who had posted sexual information and insults about classmates online, could be prosecuted under the statute. Writing for the majority, Judge Victoria Graffeo acknowledged the county had a compelling interest in punishing those who upload offensive content, especially in an educational or bullying context. However, she continued, the statute went too far by criminalizing mere annoying or embarrassing speech.
Returning to the revenge porn context, lawmakers face similar challenges distinguishing posts and photos meant to humiliate from those meant to publicize, especially in cases like the most recent hack where multiple parties re-post and share the photos after the initial hacker’s post. It also suggests revenge porn laws may not help prosecutors looking for the celebrity hackers, as the original posters could have operated out of any jurisdiction, whereas the typical revenge porn poster likely lived with or near the victim.
Although it’s clear revenge porn and the culture behind it needs to be addressed, it’s less clear that the recent criminal statutes will be of much help. For now, the impacted celebrities and their attorneys seem to have settled on copyright legal strategies, bringing claims against anyone who posts the photos. But for the not so famous victims of revenge porn, there doesn’t seem to be a good way to regain the privacy taken from them.
[1] People v. Marquan M., No. 139, WL 2014 WL 2931482, at *1 (N.Y. July 1, 2014).