Monday, September 15, 2014

A reminder on the constitutional issues with revenge porn bills

The debate on revenge porn laws continues.  Again, if there were a federal law against it, Section 230 would not necessarily apply (March 28), and a safe-harbor mechanism for service providers might be set up, paralleling the DMCA (for a different issue that copyright).  Without a safe harbor tied to specific notification about an individual item, service providers could be on the hook for all user generated content, as there is no way to know prospectively that a particular post might contain illegal revenge porn. With state laws, Section 230 would still apply, which is why states' attorneys general want to carve out (dangerous) exceptions for state laws, too.  
The Bennett and Bennett law firm has a detailed analysis, from Oct. 2013, “Are statutes criminalizing revenge porn constitutional?”  link here This is pretty longwinded but should be considered in light of weakening Section 230.

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