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'Revenge porn' law in California could pave way for rest of nation

Sep. 3, 2013 at 4:34 PM ET

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A bill that would criminalize "revenge porn" — nude or sexual photos, generally of former wives or girlfriends, posted online by an angry ex — could pave the way for other states to adopt similar laws, putting perpetrators in jail for six months if convicted a first time, and up to a year for repeat violations. The bill, already approved by the California Senate, is expected to go to the state Assembly as soon as this week, despite concerns from some lawmakers and experts who fear it could curtail First Amendment rights.

"It's traumatized real victims; it's a growing problem," California state Sen. Anthony Cannella, told NBC News. "Technology moves much faster than our laws," said Cannella, a Republican, who authored the legislation. "When we identify a problem, it's our responsibility to deal with it."

If passed by the Assembly, SB 255 will go to Gov. Jerry Brown for approval. It's not clear whether Brown will support it. "Generally, we do not comment on pending legislation," Brown press spokesman Evan Westrup told NBC News.

One supporter with whom Cannella has been working is Holly Jacobs, a Florida woman who founded End Revenge Porn after her own nightmare with the issue began more than four years ago. 

Like many other couples, Jacobs and her boyfriend had private photos of intimate moments — photos not meant for public consumption. After their breakup, Jacobs saw her photos plastered everywhere on the Web, including on Facebook and several revenge porn sites. Her email address was part of what was shared, "so I had harassing emails constantly coming in," she told TODAY's Matt Lauer in May. "My work location was posted up and there, so I was terrified. I was so afraid that someone would physically stalk me."

In the era of instant uploads, a slimy sub-industry of sites have emerged that are dedicated solely to such "revenge porn" shots and videos. It has become a money-making "sport," of which one of the most notorious players is Hunter Moore, who was under FBI investigation for his controversial site, Is Anyone Up.

Though the sites often include personal information about the victims, including names, email addresses and even links to their Facebook profiles, the sites themselves are protected from liability because of Section 230 of the federal Communications Decency Act, which says that websites and Internet service providers cannot be treated as a publisher for "any information provided by another information content provider." With little legal recourse, these victims are left feeling helpless and humiliated. 

Jacobs' fear turned to anger, and she decided she would no longer be a victim. She filed criminal and civil charges against her ex. The ex, through his attorney, has denied the charges against him, contending he is just as much a victim as Jacobs, and that the reason the photos and video were shared is that his computer was hacked.

Those who might think, "Well, you shouldn't have taken those photos ... " aren't living in the real world of what has become, especially for a younger generation, a cultural-technological phenomenon as normal as tweeting and texting. 

"It’s absolutely just a new version of victim blaming," Jacobs said in May. "What I would say to victims when they hear that is, just hold on to that little voice inside of you that says, 'This is not right.' What's happening to me is not OK, and there need to be laws in place against this."

The California legislation, Jacobs told NBC News, "is so important because it has the potential to set a precedent for other states considering to criminalize revenge porn."

Precedents and objections
The state that comes closest to doing that now is New Jersey, which since 2003 has had an invasion-of-privacy law aimed at video voyeurs, people who secretly videotape others naked or having sex without their consent, according to a spokesman for the Office of the Attorney General in that state.

That law was one of those used to prosecute Rutgers University student Dharun Ravi, found guilty last year after setting up a webcam to spy on his gay roommate, Tyler Clementi, in 2010. Ravi livestreamed the video and tweeted about his roommates's activities. Clementi, 18, committed suicide after learning about the public humiliation.

"Legislators did not discuss the issue of 'revenge porn' in passing this law" in 2003, Peter Aseltine, a spokesman for the New Jersey attorney general's office, told NBC News. "Nonetheless, the language of the statute is quite broad and arguably applies to allow prosecution of an individual in a 'revenge porn' situation." 

Other revenge porn law efforts could soon be underway in Texas, Wisconsin and Georgia, Jacobs said. 

While most everyone will agree that the revenge porn practice is reprehensible, crafting legislation that doesn't inadvertently restrict free speech is the challenge.

In Florida, where Jacobs lives, an attempt at a revenge porn law failed this year partly because of concerns the way the law was written could interfere with free speech. Jacobs cited another concern: a requirement that personal information, such as the victim's name and email address, also be posted as part of the photos or videos shared.

"I'm sure the revenge porn posters would have easily found a way around this," she told NBC News. "Our personal information is already posted when our faces are in these pictures."

Florida State Sen. David Simmons and state Rep. Tom Goodson, both Republicans, plan to try again with a new bill with different wording next spring when the legislature is back in session.

Jeff Hermes, director of the Digital Media Law Project at the Berkman Center for Internet & Society at Harvard University, said a "balance needs to be struck properly," and he is not sure the California law will do that.

"You need to be extraordinarily careful in criminalizing privacy law because of the risk you're going to deter legitimate speech," he told NBC News. "With the California bill, I don't see an exemption here for material that's legitimately newsworthy."

Take for example, he said, "circumstances where photographs exist of a political candidate who has run their campaign on their squeaky-clean image," but there are photographs of that candidate in a compromising position. "The distribution of these photos could indicate (to voters) that candidate might be lying about their past."

The revenge porn bill, Hermes said, is "responding to a significant concern, and I don't want to downplay that. It is a law in a field which is already heavily regulated — privacy — and where there are court remedies. But the question is whether the criminal penalties are necessary to achieve the aims already provided by existing law."

Only one California state senator, Leland Yee, a Democrat, voted against SB 255 when it came before the senate last month. His reason: "First Amendment protections are fundamental to our free society," he said in a statement to NBC News. "While I appreciate the intent of this legislation, I feel it was too broadly drawn and could potentially be used inappropriately to censor free speech."

Video: Holly Jacobs’ life was turned upside down when intimate photos she had sent her ex-boyfriend turned up online. She is now speaking out about her ordeal, hoping to alert others to the dangers of “revenge porn,” which experts say is more common than you might think.

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