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California Law Would Criminalize “Revenge Porn.” Guess Which Privacy Groups Oppose It?

ACLU and EFF logos

The California Senate’s Public Safety Committee passed SB 255 earlier this week to prohibit the distribution of “revenge porn”—the non-consensual distribution of intimate images of individuals. Groups like Without My Consent have been campaigning to get state laws changed to make this a crime. As the bill’s chief sponsor State Senator Anthony Cannella says, “People who post or text pictures that are meant to be private as a way to seek revenge are reprehensible. Right now, there is no tool for law enforcement to protect the victims.”

The legislation is fairly straightforward so I will quote it directly:

“This bill would make it a misdemeanor for any person who, with the intent to cause substantial emotional distress or humiliation to another person, by means of an electronic communication device, and without consent of the other person, electronically distributes, publishes, emails, hyperlinks, or makes available for downloading nude images of the other person along with personal identifying information of the other person.”

This bill is a common sense solution to an incredibly offensive activity. Indeed, California’s Public Safety Commission approved the legislation unanimously. As I have argued before, when it comes to privacy, policymakers should focus on restricting specific uses of data that harm individuals, such as unfair discrimination when buying health care insurance, applying for a job, renting a home, or applying for a credit card, rather than broadly trying to lock down data or outlaw technologies. This means we can debate specific things like whether distributing revenge porn should be legal, rather than arguing over whether to outlaw cameras and nude photos generally.

So who is opposing the legislation?

Shockingly both the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF), two purportedly die-hard privacy advocacy groups, have come out against the bill. I understand an interest in protecting free speech, but it’s hard to see the value the ACLU or EFF sees in protecting this type of abhorrent activity, especially with such a narrowly targeted bill. After all, we have anti-bullying laws and anti-hate speech laws and “revenge porn” is basically the worst of both of those rolled into one.

Consider that the ACLU is the same organization that writes on its website, “We work to ensure that individuals, not governments or corporations, determine how and when others gain access to our personal information.” And EFF claims that it “fights in the courts and Congress to extend your privacy rights into the digital world, and works with partners around the globe to support the development of privacy-protecting technologies.” Apparently the ACLU and the EFF are okay with revenge porn sites so long as they do not use targeted online advertising.

My main point (besides the fact that you might want to reconsider your donation this year to ACLU or EFF) is this: these advocacy groups often present themselves as if they have a monopoly on representing the privacy interests of citizens. They do not. It is clear that they are more interested in fighting corporations and government than in enacting meaningful privacy laws. It’s worth keeping in mind where these groups stood on this legislation the next time their experts are called upon to testify on how to improve privacy.

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About the author

Daniel Castro is vice president at ITIF. His research interests include health IT, data privacy, e-commerce, e-government, electronic voting, information security, and accessibility. Previously, Castro worked as an IT analyst at the Government Accountability Office where he audited IT security and management controls at various government agencies. He has a B.S. in foreign service from Georgetown University and an M.S. in information security technology and management from Carnegie Mellon University.
  • Mellow Jessica

    These short-sighted and reprehensible revenge porn laws unnecessarily criminalize speech (they criminalize images – which can’t be inherently harmful (!!!)) when any woman foolish enough to pose for (or take) pornographic pictures of herself that she then facilitates the distribution of could always pursue a civil action if she’d truly suffered some harm…

    Furthermore, revenge porn laws run the risks characteristic of most criminal statutes in the USA: theyre inflexible, they’d create victims where there really are none, they’re susceptible to discriminatory police enforcement (oh no, that won’t happen – not in America!), and they’d add even more inmates to a country that already has the highest per capita prison population in the world.

    Don’t make pornography if you don’t want to be a porn “starlette”.