California Revamps “Revenge Porn” Law to Include Selfies by Erica M. Sorosky

Anyone recently browsing the Internet or watching the news knows that anonymous hackers leaked stolen images of over 100 female celebrities, including Jennifer Lawrence, Kate Upton, and Kirsten Dunst, just to name a few.  While some talking heads are shaming women for posing for such explicit photographs and trusting a flawed technological infrastructure to house them, others are more focused on the incident’s surreptitious offenders and the gaping need for legislation to protect the unwittingly captured.

California was one of the first states to grapple with protecting constituents from non-consensual online sexual exploitation.  In 2013, California signed into law a “revenge porn” bill, SB 255.[i] The law, a first of its kind for the state, makes it a misdemeanor to distribute nude or explicit photographs or videos of someone without their consent.  Specifically, the “revenge porn” law provides:

“[A]ny person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress, is guilty of disorderly conduct.”  (Emphasis added)

Some groups criticize the law for not going far enough to protect victims, as it only criminalizes photographs or videos of a victim taken by someone else.  There is nothing in the law safeguarding those who have taken pictures of themselves only to have the photographs later disseminated without their consent.

As smartphones become more ever present in our daily lives, so does their use during intimate moments.  Among other things, digital technology infiltrates how people flirt.  Sexting — receiving, sending, or forwarding sexually suggestive photographs or videos via cell phones — is on the rise among cell phone owners.  According to a new Pew study,[ii] some 9% of cell phone owners have sent a suggestive picture or video, while 20% have received one. 

In conjunction with increased dissemination of intimate photographs intentionally sent by the capturer to his/her desired receiver, a phenomenon called “revenge porn” has now entered our digital vocabulary.  “Revenge porn” — the posting of nude or sexually explicit photographs or videos online to degrade or harass someone, usually a former spouse or lover — is on the rise.  A 2013 study by McAfee[iii] found that about 10% of ex-partners have threatened to expose risque photographs of their ex online, and they carried out those threats nearly 60% of the time.

In “Criminalizing Revenge Porn,”[iv] Danielle Keats Citron and Mary Anne Franks share a story of “Jane,” a woman who allowed her boyfriend to take a nude photograph of her, assuring her it would be for his eyes only.  After the couple broke-up, Jane’s ex-boyfriend posted the image and her contact information on a popular “revenge porn” website.  She realized what happened when strangers started to contact her soliciting sex.  She immediately contacted the police.  Officers, however, informed Jane they were unable to help because this was an isolated incident (so her ex could not be found guilty under that state’s criminal harassment law) and her ex took the image with her consent (so it was legally obtained and belonged to him).  Situations like Jane’s led a number of states, including California, to enact laws criminalizing the distribution of confidential photographs taken by a perpetrator without the victim’s consent.

The new predicament facing legislatures involves situations where the subject “revenge porn” is a photo taken by the victim of herself/himself intended for private, not public, consumption.  A recent study by the Cyber Civil Rights Institute revealed that as much as 80 percent of “revenge porn” involves photographs taken by the victim.[v]

As a result, on August 28th, the California legislature unanimously passed a new bill, SB 1255,[vi] that expands the definition of “revenge porn” to include selfies — a self-portrait photograph, typically taken with a hand-held digital camera or camera phone.  The bill provides:

“[A] person who intentionally distributes by any means an image of the uncovered, or visible through less than fully opaque clothing, body part or parts of another identifiable person or an image of another identifiable person engaged in a sexual act, knowing that the depicted person does not consent to the distribution of the image, is guilty of disorderly conduct.”  

In other words, SB 1255 extends the current law to make “revenge porn” a crime regardless of who snapped/taped the image.  The bill is now headed to Gov. Jerry Brown’s desk. 

As states like California pioneer the broadening and criminalization of digital privacy offenses, such acumen awaits introduction at the national level.[vii]  In fact, if the Lawrence/Upton/Dunst photo hackers had not obtained the posted images by hacking into Apple’s iCloud, their distribution of sexually explicit images of celebrity victims without their consent would be legal today in most of the United States.[viii]
Erica M. Sorosky is an associate who practices in the Business Litigation Group of Palmieri Tyler.