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C. A. Goldberg PLLC

REVENGE PORN IN THE MILE HIGH CLUB?

April 17, 2014

Public attention has veered away from Flight 370 to a different airline investigation underway, this one at US Airways. Specifically, the impetus behind the company’s tragically, uh, misguided, tweet of April 14th responding to a complaint from a customer named Alex.

Beneath advice directing Alex to their customer relations team, @USAirways tweeted an image of a model-sized 777 crash-landing into a woman’s naked genitals.  Well, I hope Alex’s tweetbelt was fastened for that one. [insert groan. Wait, no, don’t insert anything]

Not surprisingly, the image went viral.

The picture traces back to a tweet sent to US Airways about four hours earlier from a user called ARTXDEALER.   At 10:59 AM on April 14, 2014 ARTXDEALER tweeted, “@AmericanAir WTF ONE OF YOUR PLAINES [sic] JUST CRASHED INTO MY [you-know-what]” and beneath this was the now notorious [very NSFW, very NSFAnytime] image.

US Airways then inadvertently retweeted this photo when responding to customer complaints a few hours later.  In addition to customer Alex, it was also sent to @ellerafter  “welcom[ing] her feedback“ and urging her to review her trip at the provided link, which, you guessed it, led to that nosediving photo.

So, the relevance?

A couple of the outspoken critics of laws criminalizing revenge porn have hijacked this media blunder to announce that re-tweeters of the image (there are thousands) could theoretically face charges under revenge porn laws.  This misleading alarmism demonstrates that some minds are better suited for questions like whether to order the chicken or the beef, than for grappling with the construction of actually pretty simple laws.

So, does a retweet of the US Airways photo qualify as revenge porn? No.

Why? Because based on what we know about the image, it doesn’t fall under the definition.  And if it did, the exceptions apply.  And the law doesn’t require that we know everything about everything.

The proposed legislation in NYS, for example, reads in part:

“A person is guilty of non-consensual disclosure of sexually explicit images when he or she intentionally and knowingly discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without such persons consent, when a reasonable person would have known that the person depicted would not have consented to such disclosure, and under circumstances in which the person has a reasonable expectation of privacy.  A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.” [emphasis added]

For the model laws go here.

The New Jersey statute (2C:14-9), which is the one that these guys claim would land the retweeters in jail is the same but different.   It uses the language of “license and privilege.”  That is, images shouldn’t be distributed when “knowing he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure.” [pronouns are the law’s, not mine]

The NJ law has its bugs and redundancies, no doubt, but it went into effect in 2003 and thus should not be used to demonstrate deficiencies of the new wave of tightly worded legislation sweeping our country.

If indeed the image is of ARTXDEALER and ARTXDEALER made the decision to send a nude image of herself to a multi-national corporation via twitter she’d have to know that it would likely be posted and retweeted enthusiastically.  Thus, there’s consent and no reasonable expectation of privacy on her part.

Even if the image is not of ARTXDEALER herself, and instead depicts a person who knew that it could be or would be exhibited and/or distributed (i.e. porn or art or consensually distributed amateur porn), then again we have consent and expectation.  Thus, not revenge porn.

Lastly, even if the person depicted in the image sent it to somebody (ARTXDEALER or somebody earlier in the chain) for private consumption without the expectation that it would be shared, there’s an argument to be made that the disclosure by all those retweeters serves a “lawful public purpose.”  This is basically what we call the “Sydney Leathers exception,” and such an exception is contained in most proposed revenge porn laws.  New Jersey’s is a “lawful purpose” exception.  Similar to how neither Sydney Leathers (nor the derivative distributors) should be prosecuted under revenge porn laws for releasing the Anthony Weiner image since the public has an interest in knowing what our politicians are up to, the US Airways retweeters’ actions are defensible because communication about the conduct of our mega-billion dollar transportation businesses serves a lawful public purpose, especially if that conduct involves preposterously unfortunate oversights.  The people who would be on the hook in such a scenario is anybody who knew it was being distributed without consent.  Even without the lawful public purpose exception, people who do not personally know the subject depicted could reasonably expect that she consented to its distribution. And where does that reasonable expectation come from?  The massive amounts of porn – both amateur and professional –  available and distributed with the consent of the depicted individuals and also contextual clues which I’ll talk about later.

So then the question is how the public can know if something is intended for private or public consumption when they don’t have a firsthand relationship with the depicted subject. Like with other intentional crimes, the state of mind is relevant.   It’s the same with intentional torts. It’s one thing for your suitcase to accidentally fall on your seatmate’s head when you open the overhead compartment; quite another thing to intentionally drop the Tumi on his bald head.  (Regret hogging that armrest now, Mr. 17A?)  Whether or not the distributor knows or should know that distribution is nonconsensual is crucial.

The critics of the criminalization of revenge porn, few in number but loud in voice, seem to think it’s unfair for people to even have to be bothered to consider a person’s expectation of privacy in situations when a would-be distributor doesn’t know if the depicted person consented.  It’s the right to retweet a photo of a mini-jet inserted into a stranger’s genitals that first amendment advocates hold dear – the protection of the people who make viral things become viral.  The proposed (and most existing laws) already do protect these people.  Again we’re talking about the issue of the second-round, or derivative distributors.  Personally I don’t think it’s a bad thing for these secondary distributors to pause pre-click and wonder if perhaps the subject hadn’t consented, but it’s this very arithmetic that some would say chills free public discourse.  Again, though, I think the abundance of consensually distributed porn shields people in many situations when they don’t know the subject or context.

But let’s look at the construction of the law.    If you affirmatively know the subject is not consenting to the release, that’s different from not knowing that she is consenting.  When consent is not known, the law imposes a reasonable person standard.  The test is whether a reasonable person would have known that the depicted person would not have consented to disclosure and would have a reasonable expectation of privacy.  Mind you, the test is not whether a reasonable person would consent to the distribution.  The test is whether a reasonable person would think the person depicted would consent to the distribution.  Most reasonable would not favor the dissemination of an image depicting an airplane going down between their legs.  But that’s not what we’re dealing with.  We’re dealing with the person actually depicted and his/her expectations.  If retweeters looking at the context surrounding it – it coming from a twitter handle that looked like it was an art dealer and the use of first-person pronouns in the tweet and knowledge that consensually distributed amateur porn is rampant, retweeters could reasonably assume consent and/or no expectation that the image stay private.  If it was actually posted by the woman’s angry ex-boyfriend, there’s no burden on the public to know this in light of those other mitigating factors.

Similarly, if my sister asks me to grab her luggage from the baggage carousel, I’m going to reasonably expect that the item she pointed to is hers.  I’m not going to ask her to show me the receipt to prove I’m not being tricked into stealing somebody else’s Louis Vuitton rollerboard.   And if I were accused of stealing it, I’d reply that I had the reasonable expectation it was hers based on x, y, and z.  (In this case that expectation would be based on her lack of a propensity to steal, her taste and budget – resulting from a comparably sage decision to pursue (and achieve great success at) a law career in M&A/entertainment and not public interest.)

In conclusion, the retweeters of that ill-fated flight pic are safe from prosecution.  With that, I thank you for reading, and please use caution when opening overhead bins, as items may have shifted during flight.