Friday, November 01, 2013

Criminalizing "revenge porn" can undermine free speech through overbreadth

Is criminalizing revenge porn a bad idea, because states purporting to do so are likely to be overbroad? Sarah Jeong of Wired thinks so, as she explains in this Oct. 28 article on Wired
  
The writer points out that under California’s law a blogger who, for purposes of journalism, links to a revenge porn site could be breaking the law.  That begs a question I have considered for years – do people have a “right” to broadcast their coverage online of issues in which they don’t appear to have a personal stake?  The likelihood of enforcement of such a provision does seem very remote.
The writer also lists some remedies available to victims even in a CDA230 environment, which appears to protect website operators on the surface.  These include laws against extortion, use of DMCA copyright,  law requiring age verification of adult photos, and invoking a tort of disclosure of private facts (although on that one it seems that 230 applies).
    
Maryland’s Democratic candidate for state attorney general, Joe Cardin, has introduced a bill criminalizing the placing of explicit photos online without the subject’s consent, with a Think Progress story by Tara Culp-Ressler here
  
 The law would seem to have the possibility of broad interpretation – what about intimate behavior in public in a disco?   (Is “dirty dancing” considered explicit?)  In some state law proposals, explicit requires nudity, others not.
    
Michael Chertoff, former Homeland Security head, has an interesting piece on p. A17 of the Washington Post this morning, “Invading our own privacy”, link here.  Online, the story is called “What the NSA and social media have in common”.  
  
See also posting Sept. 3, 2013 on the California law.  


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