Albany! What the hellbany?!
Mere days before the end of session, yesterday (June 11, 2014) the New York State Senate passed Bill No. S05946A. A revenge porn law! Get out the bubbly, right?! Alas, this may be a celebration more worthy of Cook’s than Cristal.
That’s because Bill S05946A, introduced by Sen. Boyle – R, is flawed. Seriously flawed. Like covered in Boyles’ boils. This is not the bill that experts carefully tailored to both address the common fact patterns we see from victims AND to withstand the huffing and puffing of the constitutional-ground challengers. That bill A08214-A (aka S05949-A) languishes still. So basically while the really gorgeous supermodel of legislation was getting gussied up for the party, this other ugly little bill swooped in and ran off with the host.
The law that was aye-d in the Senate is actually two — 250.70 and 250.75 “Unlawful Dissemination of an Intimate Image” in the Second Degree and First Degree respectively. The law, if passed, will be in good company alongside its Section 250 family of eavesdropping, wiretapping, and unlawful surveillance (i.e. Peeping Tom) privacy crimes.
The gist: “A person is guilty of unlawful dissemination of an intimate image in the second degree when, with intent to harass, annoy or alarm another person, he or she intentionally disseminates an image or images of the sexual or other intimate parts of another person without explicit consent of such person to disseminate such image.”
After winning over the Senate yesterday, it went straight to the Assembly and immediately referred to code. Once the Assembly votes it in, which it likely will, Cuomo signs. One hundred and eight days later, cops start using it.
Features of the law:
- Perpetrator must have “intent to harass, annoy or alarm.”
- Dissemination must be intentional.
- Presupposes that the victim has not consented to the dissemination unless there’s been “explicit consent.” Thus, the burden is on the distributor to obtain consent to distribute. It is not on the subject to affirmatively forbid distribution.
- Image must be “of the sexual or other intimate parts of another person.” Definition of “sexual or other intimate parts” from (250.40(3)): “the human male or female genitals, pubic area or buttocks, or the female breast below the top of the nipple, and shall include such part or parts which are covered only by an undergarment.”
- Definition of “disseminate” from (250.40(5)): “to give, provide, lend, deliver, mail, send, forward, transfer or transmit, electronically or otherwise to another person.”
- Class A Misdemeanor.
- Felony for recidivists if convicted a second time within ten years from first conviction.
My beefs:
- We need clarity about prosecuting the people who disseminate the sexual images for purposes other than to “annoy, harass or alarm.” The harm to the victim hinges not at all on the perpetrator’s intent. Some people are more motivated by the purpose of gossip, prurient interests, desire to entertain/impress others, as a favor for a friend, to share with their fetish community, the pecuniary interest in populating their website with images (especially when they can make money from advertising and for the take-down services offered alongside).
- We need clear exceptions that would protect this law against constitutional attacks relating to free speech, overbreadth, and as-applied challenges. (Marc Randazza recently informed me that he’s redirecting his efforts from helping victims of revenge porn to aligning with the perpetrators to overturn revenge porn laws. The law needs to be tight enough for him throw them into the trunk of his Porsche with a shovel, drive into the desert, and go Vegas on it.) A better version of the law (the languishing one drafted by Prof. Mary Anne Franks and sponsored by Assembly Member Braunstein – D) contains exceptions for medical purposes, police reporting and investigation, situations where the nudity was voluntary in a public or commercial setting, or when disclosure was for a legitimate public purpose (i.e. newsworthy exception – we don’t want to Sydney Leathers to be prosecuted for exposing Anthony Weiner’s wiener. Though maybe we could argue that her intent was not to harass, annoy, or alarm, but was to inform the public that a political nominee was a recidivist dicpicker. While I’m at it, shout-out to the wartbag (b)lawyer who claims to have invented the Leathers/Weiner newsworthiness exception and whines anytime he isn’t so acknowledged. Blech.)
- My fantasy law would gratuitously throw in the word “conduct” as a nod to the growing canon of cyberbullying cases making the distinction between “speech” and “conduct” amid constitutional challenges.
- We need to know what an “image” is. An ideal law would indicate that images are “photographs, films, videotapes, recordings, or reproductions of an image.” We need a list here to avoid an overinclusive challenge (winkin’ atcha, Sharkface) – that, for instance, argues that drawings and artwork in are netted in its sweep.
- An understandable and reasonable definition of “sexual or other intimate parts” is essential. In the definition incorporated from 250.40(3) I don’t understand what “. . . and shall include such part or parts which are covered only by an undergarment.” Does that mean depicted subjects can be in their undies and still have the law apply? Or is it more of a what-my-swimsuit-covers situation in which any exposed body part within the parameters of what your La Perla unmentionables would otherwise cover are within the scope of a “sexual or other intimate part?” More troubling, though, is the underinclusiveness re: the activity in the depictions. In addition to images that reveal “sexual or other intimate parts,” the law needs to apply to images of sexual activity (oral, anal, genital, whatever). For instance, a person performing oral sex on another person would not necessarily be served by this law. Such a victim could be facially recognizable, though not revealing “sexual or intimate parts” of her/his own and stands to be just as humiliated from the image as if her own body parts are exposed. There’s a whole genre of videos devoted to women’s faces being ejaculated on. What of that? Also, depending on how a photo is cropped or the angle of the victim, a person could be engaged in any type of sexual intercourse without a proscribed “sexual or other intimate part” being exposed.
- Put a fine in! That’ll deter the behavior even more.
The extra toe:
An entire Google/Facebook-sponsored paragraph grousing about how internet service providers are immune from liability for user-generated content. We saw this same blather in the Colorado law that just passed. According to Capital New York, lobbying firms Bolton-St. Johns and Hill, Gosdeck & McGraw, LLC spent $52k on this language for their hyperventilating godfuckillionaire internet behemoth clients. Suddenly they seem not so warm and cozy under their Communications Decency Act Section 230 fed statute?!
It reads: “Nothing in this act shall be construed to impose liability on an interactive computer service for content provided by another person. The term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service of system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”
In my opinion it’s more immunizing than 230 which holds sites liable for content they “create or develop.” There is increasing pontification that dedicated revenge porn sites that solicit and monetize it are engaging in the “creation or development” of content. Yet to be challenged in court.
So, will the ASSembly cover ours?