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Revenge Porn

THE FTC SAYS NO TO REVENGE PORN.

January 29, 2015

In a phenomenal development today, the FTC has filed an administrative complaint against Craig Brittain, the Colorado-based owner and operator of the IsAnybodyDown revenge porn website.  IsAnybodyDownright in love with the FTC?  I am.

I’ll provide some information about Brittain’s biz model, the  complaint, and proposed consent agreement/order below, but first let’s talk about why this is so victorious for victims of the nonconsensual distribution of intimate images.

The FTC’s decision to open this case is tremendous because we finally have a government entity — a federal agency, no less — taking a firm stance on the real abuse that’s happening to women online.   The Director of the FTC’s Bureau of Consumer Affairs, Jessica Rich, calls the behavior “not only illegal but reprehensible.”  The complaint, at last, is something authoritative that gives witness to the “substantial injury” that befalls victims of revenge porn. It talks about the third parties that contact, harass, and threaten, the whack-a-moling process of regaining control of the images, and best of all, it says the harm to the victim far outweighs the benefit to consumers or competition. It basically denies that this is a type of industry worth protecting when weighed against the suffering by victims.

I love how it talks about the expectation of privacy.  It starts with the assumption that no woman, not even those sending images to a stranger (which Brittain was for many of them) has a reasonable expectation that a nude image will be distributed beyond the person they share it with.  This language stating that distribution is wrongful when a person “knew or should have known that the depicted person had a reasonable expectation that the image would not be disseminated,” is taken right out of CCRI’s model laws.  (h/t Mary Anne Franks).

Unlike so much of the machismo rhetoric on this topic, it notes that the harm to victims is “unavoidable.”  This is a stark contrast to the just-don’t-take-the-picture mentality which is quickly becoming outdated.  It also sends a message hopefully heard by state legislators and the ACLU, still insisting that criminal laws be written to contain an intent-to-harm element.  The harm is unavoidable, the FTC says.  Intent is irrelevant.

The FTC demands that the website operators acquire affirmative advance written consent from all persons posted nude on the site.   Ha!  This could spell the end for revenge porn as we know it. Not only will this drastically diminish the number of published images, but it’s doubtful that the same loathsome crowd of consumers who were titillated by the nonconsensual component of revenge porn will be still drawn in when nonconsensual porn is well, consensual.

Importantly, it puts nude images of a person in the same conversation as other protected personal identifying information. It requires that Brittain disclose all personal identifying information that was released about the victims alongside their nude images. This is important because we have robust state and federal laws that companies from releasing some kinds of personal identifying information, but usually this relates to commerce, for instance it’s considered a reportable security breach if our credit card numbers get released.

Best of all, it prohibits the operator from misrepresenting the identity of those who provide content.  So all those hackers and ex-boyfriends must remove their masks!  Time for your identities to get naked.

Now for some information about the complaint and proposed consent agreement/order:

Brittain had three methods for obtaining pics:

1)   encouraging and soliciting people to submit pictures of women.  He required that submissions contain two or more nude or partially nude pics and personal information about the subject which was published on his website alongside the images:  full name, date of birth (or age), town and state, phone number, FB profile.

2)   Posing as a woman on Craigslist, sending them naked pics purportedly of himself in exchange for naked pics of them.

3)   A “bounty system” on the website in which anybody could offer to pay a bounty of at least $100 or more for naked pictures of somebody specific.  Brittain would get $20 for the listing fee and half of all rewards given.

Brittain differentiated his website from other similar ones, claiming that the derogatory commentary about the depicted subjects produced a “higher level of hatred.”  According to the FTC report, Brittain refused all requests from victims begging for the pictures to be removed.  However, victims could pay $200-$500 to the websites advertised on his site: www.takedownhammer.com, and www.takedownlawyer.com, both of which were actually operated by him.  Oh, and another site he operated, insanely named, www.obamanudes.com

So, the FTC has two charges:

  • Unfair practices.  “Respondent disseminated photographs of individuals with their intimate parts exposed, along with personal information of such individuals, through the Website for commercial gain and without the knowledge or consent of those depicted, when he knew or should have known that the depicted person had a reasonable expectation that the image would not be disseminated through the Website for commercial gain.”  It goes on to note that the “substantial injury” to victims is “not reasonably avoidable and is not outweighed by countervailing benefits to consumers or competition”
  • False claims.  The images he solicited “directly or indirectly” were solicited while “representing directly or indirectly” that they would be used solely for “personal private use.”

The proposed consent order involves the following:

1.     Brittain cannot disseminate naked images without affirmative express consent for all depicted individuals.

2.     Must keep records of affirmative consent and make those records available to FTC

3.     “Clearly and prominently disclosing” to all individuals that images received will be posted online and disseminated.  This cannot be part of a privacy policy or term of use.

4.     Restraint on using all pics and personal information that he’s acquired that pre-dates this order.

5.     Required to destroy all personal information in his possession except relating to that which is requested by gov’t agency, law or court order

6.     Brittain’s “officers, agents, servants, employees, and attorneys, and all others in active concert or participation with any of them”

7.     Restrained from misrepresenting the identity of those who provide content or advertisement

8.     Restrained from misrepresenting his own collection, use disclosure or deletion of personal information

9.     Restrained from misrepresenting his own identity

10. Recordkeeping of the following:  takedown requests and complaints, his response to those, law enforcement subpoenae, details about how he collects, uses, discloses, or shares personal information

Now, usually we can’t go after RP websites because of their exemption from liability under the Communications Decency Act Section 230 which holds websites not liable for content users posted. Now Brittain’s case is a little different than most because he himself gathered some the images and ran this extortionist takedown method. However, Count 1 of the complaint would apply to ALL revenge porn websites. Per the FTC, it’s an unfair practice if you run a website that peddles in sexual images that the operator knew or should have known were expected to be private.