The Buzz

Missouri lawmakers look at penalizing revenge porn

Updated: 2014-01-17T05:27:12Z

By JASON HANCOCK

The Star’s Jefferson City correspondent

— Vengeful exes, online snoops and Internet swindlers beware. The Missouri legislature may be gunning for you.

Lawmakers have introduced a rush of legislation this year aimed at reining in sleazy online behavior — each bill launched under the banner of protecting privacy. But those efforts are raising the ire of critics who worry they run afoul of the First Amendment.

First on the docket is revenge porn.

On Thursday, a Missouri House committee heard testimony on legislation aiming to protect people who share sexually explicit photos or videos with a partner only to see them pop up online, after what must surely define a bad breakup.

The motivation is often to humiliate an ex, and frequently the images are uploaded to websites accompanied by the victim’s name and other identifiable information.

Adding insult to embarrassment, victims are often coerced to pay a fee to the website hosting the images in order to get them taken offline.

“That’s called extortion, and it’s disgusting,” said Rep. Kevin Engler, a Republican from southeast Missouri.

Engler is pushing legislation making it a felony to intentionally disclose sexually explicit images or video of another person without consent, punishable by up to four years in prison. Another version, sponsored by Jefferson City Republican Rep. Jay Barnes, would make it a misdemeanor.

Both agree the bills are a work in progress.

To explain his motivation for filing a bill, Engler cited the story of a grade school teacher who divorced after a long marriage.

“The guy … put her photos up on a revenge porn site and passed them around to her principal, the school superintendent, parents’ groups,” Engler said. “If you’re a grade school teacher in a small, rural town, this would be devastating.”

The ramifications for those who are victims can be life-altering, said Mary Anne Franks, a law professor at the University of Miami and vice president of the Cyber Civil Rights Initiative.

“You have people who’ve had these images sent to their employers, sent to their families, and there is no legal remedy for them,” Franks said. “Many states were surprised to find out they don’t have laws in place to deal with this.”

New Jersey was the first state to put such a law on the books in 2004, with California joining late last year. Franks said she has worked with lawmakers in 14 other states, including Missouri, on revenge porn legislation and has heard interest from another five.

Most of the time, the operators of revenge porn websites can’t be held criminally liable because the content is provided and uploaded by others, unless the images are child pornography, Franks said. Suing for civil damages is an option. But the process can be long, expensive and uncertain.

Rep. Mike Colona, a St. Louis Democrat, questioned whether such a law can be enforced.

“You want to ask law enforcement officials, prosecutors, judges and juries to try to decide who has ownership of a picture?” Colona said. “If I take a picture of you without your permission and put it on the Internet, that’s already against the law. If I take a picture of you with your permission, that’s my picture. I can do with it whatever I want.”

Franks points out that in New Jersey, there have been at least two successful revenge porn prosecutions, most recently in 2012.

Advocates for criminalizing revenge porn could run into constitutional problems, said Joseph Thai, a law professor at the University of Oklahoma. The U.S. Supreme Court has been very reluctant to recognize new categories of speech that would be undeserving of First Amendment protection.

“Recent efforts to regulate speech that’s awful and undesirable — on or off the Internet — have been struck down,” Thai said.

Just two years ago, the Supreme Court threw out a federal law designed to stop the sale and marketing of videos showing dog fighting and other acts of animal cruelty, saying it was an unconstitutional violation of free speech.

Some analysts hold up former U.S. Rep. Anthony Weiner as an example of why the laws could be problematic. They contend that those who received explicit images via text message from Weiner and then disclosed them to journalists — and ultimately forced him out of Congress and dashed his hopes of becoming New York City’s mayor — could have been penalized under the proposed legislation.

Franks said exemptions can be written into laws to cover those situations, such as including provisions for when there is a public interest in the images becoming public.

The California legislation passed last year contained such an exemption — the law did not apply to self-portraits, such as those taken with a cellphone camera. Franks called the exemption a “glaring loophole” because most of the images that end up on revenge porn sites would qualify as self-portraits. Her organization is currently working with lawmakers in that state to amend the law.

Barnes is also sponsoring several other pieces of online privacy legislation, including a ban on websites charging money to get mug shots taken offline and on sharing personally identifiable information about consumers — including purchasing history — without written consent.

“There are a slew of areas,” Barnes said, “where Missouri laws on privacy need updating for the information age.”

To reach Jason Hancock, call 573-634-3565 or send email to jhancock@kcstar.com.

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