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Adventures in Victim Blaming: Revenge Porn Edition

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25 Responses

  1. nidefatt says:

    Well, I think it would be interesting to know more about the victims. Are they mostly children? It seems like they would be, since presumably most adults are less inclined to provide naked pictures to people they clearly shouldn’t trust. Among adults, are these the same people that require us to continue to have warning labels on hair dryers saying not to use them in the shower? Is there really any way to prevent dumb? I’m not interested in giving more court docket to dumb.

  2. PrometheeFeu says:

    First, I am getting a little tired of seeing the term “victim blaming” come up every time somebody gives advice on how to mitigate your exposure to crime. Eric Goldman is merely pointing out that any sexually explicit depictions of yourself have a substantial risk of being leaked. There is no evidence that he passes any judgement on people who do create such material.

    When I tell my friends who were the victims of malicious hackers to re-configure their firewalls, install an anti-virus and stop downloading and running binaries from untrustworthy sites, I am not blaming them for the actions of malicious hackers. I am giving them advice on mitigating their risk.

    Second, he does not classify posting revenge porn as equivalent to looking up the value of a colleague’s house. He merely theorizes that as more and more people produce sexually explicit materials of themselves, social norms will mandate a blindness to it, just like social norms mandate blindness to your colleague’s house value. In other words, the only parallels drawn between sexually explicit materials of oneself and house values is that in the future, both may be common and social norms will mandate that both be ignored by others. (In other words, one would not be fired for having taken sexually explicit photographs of onself) This does not in any way conflict with the very real and so-obvious-I-don’t-know-why-it-need-be-stated fact that victims of revenge porn are much more harmed than colleagues whose house-value was looked up.

    Third, there are many revenge-porn victims who according to your own admission are already protected by the law. If you have sexually-explicit materials of yourself on your computer and somebody hacks into your computer to post said-material online, this is unauthorized access under the CFAA and the hacker can be prosecuted. (you also have a private cause of action) Other cases are most likely covered under a variety of torts.

    Now, I understand that you want to reach the revenge porn website operators to take the pictures down. But my understanding is that those websites are usually amenable to financial compensation in exchange for taking the pictures down. Well, there is now a simple solution: you have a defendant in either a civil or a criminal case. What is the obstacle to making the defendant pay for the cleanup? If there are no such obstacle, let’s do that.

  3. PrometheeFeu says:

    Oh, I almost forgot the easiest part. If you took the picture, you own the copyright. (Somebody more familiar with copyright law could speak to whether substantial participation in the creation of the photograph would also give you the copyright, in your spouse is the one who takes the picture) Issue a DMCA takedown to the site. As much as I hate to credit the DMCA for anything it does appear to solve many problems here.

  4. Danielle Citron says:

    Mary Anne, I am with Patrick, hear, hear. Great post. A quick response to nidefatt, the victims are mostly adults. Indeed, revenge porn operators are quite careful to screen out individuals under 18, lest they run afoul of child porn laws.

  5. Jane Smith says:

    Beautifully written, Mary Anne. Thank you!

  6. Ken Arromdee says:

    I still don’t see how they can avoid section 2257 liability with the new regulations that define a primary and secondary producer. They’re not going to have the proper records for anyone they post revenge porn for.

  7. Mary Anne Franks says:

    Ken, I wish your interpretation of 2257 were correct, but I don’t think it is. This is because 2257 distinguishes between “distributors” and “producers” and has an explicit CDA 230-compliant clause. Section B states that “production” “does not include activities that are limited to” among other things, “(ii) distribution; (iii) any activity, other than those activities identified in subparagraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers; (iv) the provision of a telecommunications service, or of an Internet access service or Internet information location tool (as those terms are defined in section 231 of the Communications Act of 1934 (47 U.S.C. 231)); or (v) the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication, except that deletion of a particular communication or material made by another person in a manner consistent with section 230(c) of the Communications Act of 1934 (47 U.S.C. 230 (c)) shall not constitute such selection or alteration of the content of the communication.”

    I’m happy to be wrong about this if you or anyone else can show me how 2257 could be read differently. In any event, even if 2257 could reach revenge porn, it would not be a satisfactory way to capture what is really wrong with revenge porn, namely, the lack of consent. As I will explain in a separate post, I think 2257′s recordkeeping approach might work well for the issue of consent; that is, the law could require anyone wishing to distribute a sexually explicit image of a person to have a signed consent form from that person to do so.

  8. Ken Arromdee says:

    I think you’re right that the site owner can’t be blamed, so I made a mistake there, but it still looks to me like the laws apply to anyone who posts a picture.

    And of course you’re also right that it doesn’t capture what’s really wrong with it. Neither does the idea of issuing a DMCA takedown notice, but it’s still a method of using the law to take the photos down. I’d think that if you want the photos removed, whether you’re doing so under a law that captures what’s wrong with it, or a law which simply makes the photos illegal, is secondary.

  9. PrometheeFeu says:

    Posting a sexually-explicit image of yourself on a social networking site (perhaps a dating site or some such) is now a fairly common practice. And yet, if we adopted the rule you propose (requiring signed consent forms for the distribution of all sexually-explicit materials) such a practice would expose the site operator to criminal liability unless they got consent forms from all their users which is just not realistic.

    What about, say, a couple who open such an account. They record sexually-explicit images and videos of themselves. Then, the wife uploads the images on their joint profile. Again, a record-keeping requirement would expose the wife to liability even though everyone in the video or image consented.

    I’m not sure it is wise for people to do the things above, but I don’t think it should result in criminal liability.

  10. Aaryn Zooropa says:

    I can point to a few male politicians whose careers have been destroyed because of revenge porn. It’s not only a female problem. If it’s true that the problem is worse for women, is it possible that perhaps women take more nude pictures of themselves than men do?

  11. Mary Anne Franks says:

    Aaryn, first, if you read my post, you will know that I never claimed that revenge porn is only a “female problem.” I said that empirical evidence so far indicates that it is “primarily produced and consumed by men and primarily targets women.” Second, the fact that a minority of victims are male does not change the fact that the phenomenon of revenge porn is largely driven by sexism and misogyny. While any victim of revenge porn, male or female, deserves sympathy, the fact that men are a minority of victims of a harmful act does not deserve as much (and certainly not more) attention than the fact that the majority of victims are women.

    That being said, the only two politicians I can imagine you are referring to are Anthony Weiner and Christopher Lee. I’m not sure that either of their cases qualifies as “revenge porn.” First, the photos in question were not “pornographic.” While Weiner’s photo was certainly sexually suggestive, his genitalia was covered by underwear. Lee’s photo was merely shirtless. More importantly, neither photo was taken by or for a trusted intimate partner, and neither image’s dissemination to the general public was motivated by said partner as an attempt to sexually shame or punish them. (In fact, one could argue that Weiner’s own actions were wrongful – unlike victims of revenge porn, he sent a suggestive picture of himself to someone he didn’t know and who had never expressed sexual interest in him. In other words, Weiner was not participating in consensual sexual activity. While this may not justify the outcome, his actions should be distinguished from those of revenge porn victims.) Additionally, while feeling compelled to resign from public office is undoubtedly a serious consequence, I am not aware of either man having to confront stalking, credible threats of sexual assault, or the reality of their photos being used on pornographic websites for countless individuals to masturbate to as a result of their photos becoming public. Those are the kinds of harms that victims of non-consensual pornography have to face.

    In any event, I’m not sure how any of this changes the analysis. Punishing a person for engaging in private, consensual sexual activity is wrong. As to the question whether women take more nude pictures of themselves than men do, I don’t think we know the answer to that, and I don’t think it matters for the purposes of identifying the problem and how to stop it. What we know for sure is that men use intimate sexual photos of women to punish them, put them in actual danger, and ruin their lives, and that current law largely allows them to do so.

  12. PrometheeFeu says:

    @Mary Anne Franks:

    On the issue of the threats of sexual assault, do we have evidence that such threats are credible? I’m not being difficult, it’s just that my image of people who make such comments on the Internet is 14 year old idiots, not adults who have the means to follow through and actually do follow through.

  13. Mary Anne Franks says:

    PrometheeFeu, one can always be skeptical about the harms victims describe, especially when they are not harms we ourselves have any real understanding or experience of. Unless you have evidence to suggest that victims of revenge porn are somehow less capable of assessing the credibility of threats than the members of the general population, I question the motivation of your question. It strikes me as just another tactic to minimize the consequences of misogynist actions in order to insulate them from critique.

    And let me just say this about your various other posts: have you ever asked yourself why you are so invested in defending a status quo that denies half the population equal rights and dignity instead of trying to change it? You can speculate and moralize endlessly on the choices women make and sagely offer your “advice” about how they can “minimize their risk” (and by the way, no woman in the world needs your “advice” about how to “minimize her risk” – every woman already “minimizes her risk” of sexual abuse and harassment in a hundred ways that you cannot even begin to imagine, from restricting what she wears to where she goes to how she talks. It’s just that sometimes women get a little tired of having to act like second-class citizens and do something here and there that any man could do without any appreciable risk to his health or reputation), or you could expend a portion of all that energy and alleged concern for women by calling out the perpetrators of unambiguously malicious, hateful, sexist acts. Rapists and sexual harassers are made, not born, so if you want to give “advice” to anyone, why not give it to them and their defenders? That would be a real way to “minimize the risk” of misogynist aggression – by making the world less safe for its practitioners.

  14. PrometheeFeu says:

    Mary Anne Franks,

    I find your attack on my motives and my person undeserved and frankly insulting.

    I asked a genuine question because there is quite obviously a substantial difference between empty threats, (not matter how disturbing and potentially damaging they may be) and threats which one has a reasonable expectation to see followed on. Nowhere have I implied that victims of revenge porn are somehow less capable than the general population of determining the credibility of a threat. I merely implied that you might have empirical evidence (surveys, studies and the such) which would show whether victims of revenge porn are also the targets of sexual assault in addition to being the targets of threats of sexual assault. Why would I ask this question? Simply because I think that sexual assault is very very bad. Also, I am curious and you appeared to know a thing or two about this topic.

    “have you ever asked yourself why you are so invested in defending a status quo that denies half the population equal rights and dignity instead of trying to change it?”

    Questioning your particular approach towards improving the status of women is not the same as defending the status quo. There are plenty of different approaches towards improving the status of women.

    “You can speculate and moralize endlessly on the choices women”

    I questioned the wisdom of people posting naked pictures of themselves on the Internet simply because it can cause all sorts of problems in current society, most salient, loss of job and associated loss of income. But nowhere have I expressed any moral opposition to women engaging in whatever sexual behavior they choose to.

    “and by the way, no woman in the world needs your “advice” about how to “minimize her risk””

    First, I was not providing such advice. Eric Goldman was. Specifically, he was saying that if you take sexually-explicit pictures of yourself and store them on your computer, you may expose yourself to the risk of having them leaked. So I suppose it is him, not me who needs to be told what you just said.

    Second, you are plain and simply wrong. I won’t go into the details which are frankly none of your business but suffice it to say that there are some women who were at times, quite happy to discuss risk-mitigation strategies with me to make themselves feel safer.

    “every woman already “minimizes her risk” of sexual abuse and harassment in a hundred ways that you cannot even begin to imagine, from restricting what she wears to where she goes to how she talks”

    I am personally aware of this and familiar with the issue. You are wrong as to my knowledge on the subject.

    “It’s just that sometimes women get a little tired of having to act like second-class citizens and do something here and there that any man could do without any appreciable risk to his health or reputation”

    Yes. This is a terrible state of affairs and this issue needs to be dealt with.

    “or you could expend a portion of all that energy and alleged concern for women by calling out the perpetrators of unambiguously malicious, hateful, sexist acts.”

    I am not personally familiar with any such persons. I try to not become familiar with such people. You will notice that my energy above was at least in part concentrated on finding solutions in current law for the problem you are talking about: DMCA take-downs, prosecution under the CFAA, making the person who leaked the material pay for the cleanup.

    I argued that you were unfairly or at least wrongly presenting and attacking the Eric Goldman’s article. This does not mean that I believe revenge porn is a good thing or that the suffering of its victims is invalid. It merely means that I believe you were wrong in your criticism. That’s all.

    “That would be a real way to “minimize the risk” of misogynist aggression – by making the world less safe for its practitioners.”

    If I had a magic wand that could make the world free of rapists and people who commit sexual assaults, I would. But I do not. If you come up with a strategy to deal with these problems which I think is both effective and proportional (does not cause excessive collateral damage) then I will happily support it. If you post something I find to deserve criticism, I may post a critical comment.

    To conclude, you in your comment type-cast me as an ignorant misogynist merely based upon my criticism of your particular post. I don’t appreciate that at all first because nobody likes to be cast as an ignorant misogynist and second because I have personal reasons to find this particularly offensive. You could have addressed the content of my comments instead of lecturing me and you would have seen quite rapidly that I am no such thing.

    If you want to address the substance of what I said, I’ll be happy to hear your comments. (Especially on the legal points which are not my area of expertise and the empirical points since again, you appear to have a particular expertise in revenge porn and could provide facts which I simply lack.) I can take criticism, I’m a big boy. But if you’re just interested in impinging upon my motives, I am not particularly interested.

  15. CA says:

    But PrometheeFeu, what Franks is arguing is that the myopic, uncontexualised and “inhumane” focus on ‘mitigation’ within the revenge porn discussion actually fosters this very culture of victim blaming. For Goldman to make out that women can “prefer” not to have their lives ruined by past lovers is not only ridiculously dislodged from the seriousness of the situation, but it is completely ambivalent toward the men who ruin the lives of these women and consequently, is equally as ambivalent as to whether revenge porn continues to exist (hence the argument that home-made porn will probably become a social ‘blindspot’). Even if we are to accept your statement that Goldman is simply suggesting ways for women to mitigate the risk of ending up on a revenge porn site, then we can see that his ‘advice’ is remarkably patronising – his ground-breaking tip of simply never letting any naked photos of yourself ever be taken by anyone ever would not be news to one single reader. It would not be worth the paper it’s printed on, but we know that he isn’t simply offering advice – he’s contextualising the debate in a way that places the responsibility for revenge porn with its victims, thus making the repercussions of these sites their fault and ultimately their problem. He infers, as Franks already pointed out, that to avoid becoming a victim you should never be alone with a man, but he also infers that if you were and there ended up being naked photos of you, you better know that man better than he knows himself – not just when said photos were taken – but at any point in the future that he may decide to use them against you. Needless to say this is completely untenable ‘advice’ for women and treats the offending men like children with no control or agency over their actions. It’s really unfortunate that a discussion which should really be about how horrific and life-shattering revenge porn is, what we can do as a community to stop it (okay- not a class action- but then what?), and how on earth these sites are legal in the first place, has been derailed by commentators like Goldman trundling down the worn out old path of men finger wagging at the women who dared to be so loose with their modesty that they went and got themselves posted naked/in sexual acts over the internet. “Well, the court case will fail so just don’t get photographed naked or wait until it’s socially acceptable to do so.” Wow! Thanks Professor!

    Instead, how about we work on how to ‘mitigate’ the tens of thousands of men who post, harrass, stalk and encourage each other on these sites? How about we ‘mitigate’ the husbands, boyfriends and lovers(NOT nameless and faceless criminals comparative to the ones your friends forgot to install a firewall against) who do not actually identify as criminals, and who do not consider their actions as illegal or even “distasteful”, but who actually use revenge porn as justified and legitimate retribution against women who have slighted them? How about we ‘mitigate’ the brotherhood of guys on these sites who actively support and encourage the posting of revenge porn and participate in the abuse and harassment of its victims? By focusing on what women ‘should’ or ‘should not’ do in their relationships to avoid abuse alleviates responsibility from the actual men who thought it was okay to ruin their ex-lover’s life simply because they were denied what was wrongly believed to be entitled to them. Let’s focus on that and be a bit more productive than Goldman, shall we?

  16. Ken Arromdee says:

    Posting a sexually-explicit image of yourself on a social networking site (perhaps a dating site or some such) is now a fairly common practice. And yet, if we adopted the rule you propose (requiring signed consent forms for the distribution of all sexually-explicit materials) such a practice would expose the site operator to criminal liability unless they got consent forms from all their users which is just not realistic.

    What about, say, a couple who open such an account. They record sexually-explicit images and videos of themselves. Then, the wife uploads the images on their joint profile. Again, a record-keeping requirement would expose the wife to liability even though everyone in the video or image consented.

    This is both true and irrelevant, because you misread me. I’m not proposing that anyone make such a law. It would be stupid, for the reasons you give. I’m pointing out that the law is already there.

    You are of course correct that it requires record-keeping in such cases as a dating site or spouses exchanging pictures, and that is ridiculous. The current challenges to the law are based on scenarios like that. I’d never recommend such a law if it didn’t already exist. But since it does exist, overbreadth and all, you may as well use it.

  17. PrometheeFeu says:

    Ken Arromdee,

    Thanks for the clarification. I misunderstood you. I’m a little wary of doing as you recommend because it may in the future make narrowing the scope of that law much less politically palatable. (I feel the same way about my suggestion to issue DMCA take-downs) But otherwise, it seems like a potentially useful tool.

  18. PrometheeFeu says:

    CA,

    “He infers, as Franks already pointed out, that to avoid becoming a victim you should never be alone with a man”

    I must have missed that one.

    “treats the offending men like children with no control or agency over their actions”

    Not at all. It treats the existence of bad actors as a fact which present actors are better off if they take into account.

    This is one thing I never understand about this aspect of some modern feminist rethoric. On the one hand, women take legitimate steps to protect themselves because there are bad people out there that society fails to stop. But if anyone says that taking steps to protect yourself is a good idea because there are bad people out there, suddenly, you’re victim-blaming.

    “Well, the court case will fail so just don’t get photographed naked or wait until it’s socially acceptable to do so.”

    I’m going to out on a limb here and assume that because revenge porn is so bad, many people probably assume that current law would make such a case a slam-dunk for the plaintiff. Pointing out the fact that it is not so seems eminently useful.

    “how on earth these sites are legal in the first place”

    Well, I for one can see plenty of reason why we should go after the person who first releases the photograph to the public, but I don’t think it’s appropriate to then go after the website operator once the photo has been made public. Sure, they are sleezy, but I don’t think what they do should be illegal. Though if you want to catalog them and make it easier to call them out in public and private, that would be a great think IMO.

  19. Mari T says:

    Mary Anne,

    You said it all very perfectly. I am amazed that after you said it so well, there are still idiots out there who don’t see the logic of what you are saying. Idiots who still want to know more about the victims so that they can make a moral judgement as to whether the victim deserved to be a victim or not, etc., etc.

    I hope that intelligent people will hear, read, and think. And maybe in 2013 women can be treated with the same standards as men. And men will be held accountable for being predators and exhibiting their female trophies.

  20. Todd says:

    Why do you people keep complaining about how men treat women? It is what it is and you need to deal with reality instead of your fantasy world.

    Women will NEVER be treated equally to men because they are not men! They are women! Just like men will never be treated equally to women.

    Men and women are different and will never be equal. But you assume that this is a bad situation. Not being equal does not mean that one is superior than the other. It just means that they are different. It is neither bad nor good. It is reality and it is what it is.

  21. Jane Smith says:

    The above..coming from a man, of course.

  22. Kathleen says:

    @Mary Anne – I see where you’re coming from, but what’s your proposed solution?
    My reading of Eric Goldman’s view is that while revenge porn is a social ill, it is not worth dismantling CDA230 to stop it, and the current negative consequences of revenge porn will naturally decrease over time. I agree with this basic thesis.
    What would be useful is a discussion as to why current law (e.g., torts) are insufficient to punish those who share these images publicly without consent. If this isn’t publication of private facts, I don’t know what is. If the problem is lack of damages, perhaps the change should be to increase damages available for privacy torts, but I don’t think any change or carveout to CDA230 is the answer.
    And for the record “the reality of their photos being used on pornographic websites for countless individuals to masturbate to as a result of their photos becoming public” is not anywhere close to being on the plane of stalking or threatened sexual assault. I don’t even consider it a real harm. While other negative consequences from having a naked photo end up online, such as being fired, being shamed by your family, etc., are harmful, I don’t think that we can say that someone else thinking about you sexually is a harm to you when they have not communicated those thoughts to you. Anyone who has appeared in public probably has had someone, somewhere, masturbate while thinking about them. That you specifically targeted masturbation in your explanation makes me think that you are letting your views on the propriety of certain types of sexual activity cloud your analysis. I would be astounded if no one masturbated to photos of shirtless men splashed across the news.

  23. Melissa Culver says:

    There is an assumption in the comments on both sides of this discussion that the victims of revenge porn have posted nude photos of themselves, or willingly participated in the taking of videos or photos and so are complicit in the dissemination of the images.In fact-many of the victims are not even tech savvy! In fact the material is frequently taken without their knowledge and numerous cases have come out involving unlawful surveillance that have been prosecuted only because a business or recreational facility were involved.The lives of the victims are so affected-in many ways becoming no life at all.Imagine what it is like to be a female who can’t go anywhere without men making assumptions about them-propositioning them, following them, making gestures at them etc. Without the feeling of safety-a person’s world and opportunities shrink.There is the risk of being kidnapped, drugged, enslaved. All for the crime of being “attractive.” To all the misogynistic bastards out there-remember-you were born of a woman.What is perpetrated against women will return against you and your own and you will wish you had never been born.

  24. Jim Nico says:

    Mary Anne
    Thank you so much for staying on the cutting edge of social justice and the empowerment of women and girls. As always I am honored to know you, be your friend, and promote your brilliant work…
    –Jim Nico

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