"Revenge porn" may be a larger problem than a proposed state law can solve | News | Pittsburgh | Pittsburgh City Paper

"Revenge porn" may be a larger problem than a proposed state law can solve

"If people understood how much damage this can do to someone's life, I think we'd be able to get much stronger protections."

Jennifer wasn't sure what to expect when she clicked the link emailed to her by the ex-boyfriend she'd dated for four years. He'd harassed her online in the past, she says, and had shown up at her job "trying to get me fired."

"He did everything he could to make my life miserable," she says. And as the Web page loaded, he finally succeeded. On the screen before her, Jennifer saw a half-dozen nude and sexually explicit photos she'd taken of herself with, and for, him.

"It took everything I had not to vomit," recalls the Fayette County resident, whose real name, when Googled, yields a link to the photos within the first two pages of search results. According to a counter on the page, the photos have been viewed nearly 9,000 times so far.

Jennifer says she believes the ex-boyfriend who sent her the link was also responsible for putting the photos online. He was the only person she'd sent them to, she says, and another of his ex-girlfriends told Jennifer that her own photos had also been posted.

They were just two of a growing legion of "revenge-porn" victims — those who've had intimate, and frequently explicit, photos and videos published online without permission. It's hard to gauge the number of victims precisely. But Holly Jacobs, a revenge-porn victim and founder of the organization End Revenge Porn, says there are more than 2,000 websites dedicated to posting such photos. And once the images are posted, they can spread even further, ending up on regular porn websites.

Victims have few options to prevent that fate. Jennifer had read a magazine article advising women to get copyrights for their pictures, and send takedown notices to the websites. But a lawyer she spoke with said that suing the site's owner would cost thousands of dollars — money Jennifer didn't have. She came up empty at the state-police barracks as well.

"I talked to a female trooper," Jennifer says. "But the trooper said, ‘Sorry, there's no law against that.'"

"It just doesn't make sense to me: How can this not be illegal?"

State Sen. Judy Schwank began asking the same question last year.

"As I looked into this, I realized there was nothing to protect women from this," says the Berks County Democrat. "I could not believe that you could do this to another person and get away with it. It's not right that someone who took some photos and shared them with a partner is now inadvertently a porn star on the Internet."

In December, Schwank unveiled Senate Bill 1167, the Intimate Partner Harassment Act. The measure criminalizes the posting of nude or sexually explicit imagery "for no legitimate purpose and with the intent to harass, annoy or alarm the person depicted."

SB1167 unanimously passed the Senate last month; it's currently in the House Judiciary Committee. If it passes, Pennsylvania will be one of just four states with revenge-porn statutes on the books. But anti-revenge-porn advocates say the measure — which originally made revenge porn a felony offense, but now treats it as a misdemeanor — doesn't go far enough. They cite an unlikely combination of hurdles: law-enforcement officials who can seem less-than-sympathetic to victims, and free-speech advocates whose sympathy is tempered by concerns for the First Amendment.

The American Civil Liberties Union has fought revenge-porn measures elsewhere, though it is neutral on Schwank's bill.

"Free speech is a fundamental American value, and we don't want to toss it aside when we are upset and angry over an action that someone has taken," says Andy Hoover, the legislative director for the ACLU's Pennsylvania chapter. "We want to make sure victims are protected while free speech is maintained, and I think it is possible to have both."

"Revenge porn" really entered the cultural lexicon in 2010, with the launch of the website IsAnyoneUp.com. Its owner, Hunter Moore, became what Rolling Stone called "the most hated man on the Internet," partly because the site encouraged users not only to upload nude and explicit imagery, but to provide personal information, like Facebook and Twitter accounts, as well.

IsAnyoneUp was later sold to a buyer who shut it down: The URL now links to an anti-bullying site. But Moore's legacy lives on in a plethora of websites — including MyEx.com, where Jennifer's photos are posted.

Mary Anne Franks, a University of Miami law professor and vice president of the board of directors of the Cyber Civil Rights Initiative, says MyEx.com is currently "one of the worst offenders out there when it comes to revenge porn." The site is among the few that still gets a front page hit on Google with the right search terms.

Finding some form of recourse once your photos have been posted, however, is much harder. There are no federal statutes against simply hosting a site on which revenge porn is posted. In fact, federal law offers protection to websites that host content posted by someone else: The Communications Decency Act largely shields websites from legal consequences stemming from material placed there by third parties. (Moore himself was indicted by a federal grand jury in January — but for allegedly conspiring with a third party to hack computers for nude images, rather than for posting images posted by others.)

Franks says those provisions of the Decency Act are often misapplied: "Many people, including police officers and judges, overestimate how much immunity websites have against criminal charges," she says. But law enforcement often lacks "technological expertise and resources" to chase down those responsible for a site.

MyEx.com includes a link to what appears to be a third-party website — a so-called "reputation site" that offered to remove the photos for $500. But Jennifer sees little reason to pay. "There's no guarantee that [the photos will] come down," she says.

When City Paper sent questions to MyEx.com, it got a response from a correspondent identifying himself as "Adam," who said he was not the site's owner but worked in "customer support." "No one knows who the owner is, only communicates through email," he said.

"We are just a third-party website. We don't judge posters or the posted," Adam said. "We have removed over 200 posts of alleged pictures of minors that have been requested to be removed by law agency [sic] around world."

What about the reputation site's promises to remove the images? Adam maintained that MyEx.com didn't own it, or any other reputation site. "The one that is on their [sic] now is just smarter then [sic] other ones. They pay us an advertising fee to have their link on site."

He did not answer a follow-up question, however, about whether paying the site's $500 fee would guarantee the removal of the photo from MyEx.com.

Even if the photos were taken down, Franks says, it wouldn't necessarily be the end of Jennifer's problems. "What guarantee do you have that [the imagery] won't pop up somewhere else?" she asks. "Besides, the way things are now, what incentive does any website have to ever take these pictures down?"

Franks and other advocates say the best way to combat revenge porn is to go after the people who post it, rather than the websites that host it. But prosecutions are difficult even in states that do have anti-revenge-porn laws.

Perhaps the best-known is California's October 2013 law, which is similar to Schwank's measure. "California's law highlighted the need for anti-revenge-porn laws," says Franks. "But there are major problems with California's law, and unfortunately in some ways, it is being used as a model in other states."

Franks points to two weaknesses: First, the law doesn't cover "selfies" that a victim sends to someone else — only to images actually taken by the person who posts them. Secondly, the photos must be posted "with the intent to cause serious emotional distress," with the result that the "depicted person suffers serious emotional distress."

To date, Franks says there have been no arrests under the law. And she doubts there ever will be.

"The current version has many loopholes and classifies the conduct as a misdemeanor," she says. "Investigating this conduct almost inevitably requires seizing and searching personal devices such as computers and cell phones, and it's very difficult for law enforcement to obtain warrants to do this when the crime alleged is so minor."

Franks says the bill Schwank has proposed in Pennsylvania is a step up from the California law, because it includes selfies on the list of images that cannot be shared online. But as in California, Schwank's bill regards the crime as a misdemeanor, and requires proving an "intent to harass, annoy or alarm the person depicted."

That requirement, Franks says, "is a major problem."

"You have to prove that at the time these photos were posted that the person meant to hurt someone else," Franks says. "The purveyors of revenge porn often say, ‘We're not trying to hurt anybody, we're just trying to make a buck.' If the person's intention is to make some money or brag about their sexual conquests, then they're off the hook."

But whatever the motive, "the posting of this material causes the same damage to the victim," Franks says. "I have to keep reminding people that this is sexual abuse. We don't ask a perpetrator whether they thought the victim would enjoy it. The issue is: ‘Did I have consent?'"

The bill also would not block other information often seen on these sites: Facebook profiles, Twitter accounts, street addresses, email addresses, places of business and phone numbers. Some websites — including the one where Jennifer's photos are displayed — include submissions that offer no nude or sexual content at all: just photos, identifying information and a slew of insults. (One purported Western Pennsylvania woman, for example, appears on a revenge site fully clothed — alongside the poster's complaint that the woman wouldn't have sex with him or "help me out with nudes.")

Schwank says she is aware of such concerns: "I know the bill is not perfect," she says, "but we are taking steps to address this problem and craft a law that can be effective to protect Pennsylvanians."

And the law can't be effective if it gets tossed out in court.

In other states, the American Civil Liberties Union has taken issue with revenge-porn statutes out of a concern they overly limit speech. The ACLU's Pennsylvania chapter initially had similar misgivings here. But it has taken a neutral position on Schwank's bill — and the "intent" clause is a big reason, says Andy Hoover, ACLU-PA's legislative director.

"Generally, images are expressions of free speech, and if they are going to be criminalized, then it has to be done in a very narrow way," Hoover explains. "I think Sen. Schwank's bill does that. The images in question have to be sent with the intention that they are to remain private and the person who distributes the image has to have the intent to harm the person."

But Hoover says that "without the intent language, this bill would have serious First Amendment issues and would likely go down in court, and no one wants that."

"What about my rights not to be harassed?" counters Jennifer. "I'm 33 years old. I have intimate relationships like a lot of adults do. But because I took the pictures, or if a woman allows the pictures to be taken, there is a tendency to blame the victim for allowing any of this to happen."

That comes as no news to Sherry, of Allentown, Pa.

Her daughter was 14 when she took nude photos of herself and sent them to her high school boyfriend. The pictures were passed around by cell phone; Sherry says her daughter endured two years of bullying as a result. But she never told her mother about it until the photos were posted on the Internet after she turned 18.

When her parents went to the authorities, "It was made abundantly clear to us that our daughter could be prosecuted for the initial dissemination of the photos," Sherry says. "That is how we addressed sexting at the time — by threatening to prosecute a child for sending child porn."

No charges were filed against Sherry's daughter ... or anyone else. Though Sherry says her daughter was just 14 at the time they were taken, they are still visible on the Internet. Police have investigated, she says, but came up empty. More than five years after her daughter first took the photos, Sherry continues to call investigators about the case, but doubts anything will come of it.

"I understand that with the laws the way they were written, that the police and D.A. had their hands tied," Sherry says. "But there is just this automatic response to tell these victims that they brought it upon themselves." Especially for teens whose "hormones have fully developed and their frontal lobes have not," Sherry says, "There's a difference between the initial action of sharing these intimate photos and then the posting of these images on the Internet. They are two distinct actions, and unfortunately they get collapsed into one."

Katie Kressler, another Lehigh Valley native, knows that all too well. Four years ago, when she was 17, she sent nude photos to a boyfriend. The two later had an ugly break-up — Kressler would eventually obtain a three-year protection-from-abuse order against him — and the photos surfaced last June. Kressler went to state police. Because her protection order was still in effect, and she was underage when the photos were taken, she figured having the photos removed would be a straightforward process.

Instead, she says, "I was interrogated by state police and asked to recount all of the intimate details of my relationship." And when state police forwarded her complaint to the office of Lehigh County District Attorney Jim Martin, Kressler got back a letter saying no charges would be filed.

There was "no police involvement to substantiate allegations" the letter said, adding that "a parent is required to file a private criminal complaint on behalf of a minor."

"It makes no sense," Kressler says. "I'm 21 years old."

When contacted by City Paper, Martin says that while he signed the letter, the review was done by a deputy D.A. And he says his office's investigation should have been more thorough.

"I've asked a child-abuse investigator to reach out to her," Martin says. "That definitely should have been done. I can't guarantee that the case will be prosecuted, but it will be investigated."

Still, Martin says, these cases are tough to prosecute. Martin says that the photos have to be sexually explicit to warrant prosecution: "If it's just a photograph of breasts, it probably won't be prosecuted at all."

"I'm not saying that she deserved to have the pictures posted on the Internet, but to an extent, she brought this about herself," he adds. "We have a sexting program where we go into the schools and tell [girls] the ramifications of their conduct are that they may have to live with boys being boys."

And since Kressler originally sent the photos, he says, "This girl herself could be subject to prosecution."

When it comes to sexting, at least, the ACLU's free-speech position aligns with that of revenge-porn foes: Neither supports prosecuting kids who take or send pictures of themselves. The ACLU has, in fact, fought attempts by legislators and local law-enforcement to criminalize children's behavior in such cases.

But anti-revenge-porn activists say that a larger cultural shift is needed.

"I was told many times, ‘Well, you shared the pictures, maybe you shouldn't be taking pictures like this,'" says Holly Jacobs, of End Revenge Porn. "It really opened my eyes to the victim-blaming mentality that exists out there. And in addition to fighting for legislation, we're definitely trying to bring attention to the way we are treating victims.

"If people understood how much damage this can do to someone's life — the personal damage, professional damage and the damage to someone's psychological stability — I think we'd be able to get much stronger protections."

In fact, Franks says, there are already stronger protections on the books. Demanding payment to remove photos amounts to extortion, she says, and some photos on revenge-porn sites constitute child pornography.

Sometimes, revenge-porn operators are charged under those laws. In California, Kevin Bollaert has been indicted for allegedly operating both a revenue site and a site that promised to remove photos for a fee — usually several hundred dollars. But Franks says those cases are comparatively rare.

"I think we'd hear a different response if these sites featured extremely young girls, but the fact that many of the girls are 15 to 17 years old seems to provoke little outrage or concern," she says. "Our society, including law enforcement, has a very high tolerance for sex-related misconduct. ... [T]he fact that offering up female bodies for entertainment is so routine, and so lucrative, makes it easy to ignore the darker issues of how such material is produced or created."

On top of that, she says, "People tend to act like something that happens online is less real and less damaging. But it's not."

Kressler, for one, checks almost every day to see if her photos have been removed. She says she informed the website that she was underage when the photos were taken, because the site claims that child pornography will not be tolerated. But as of this printing, she says the photos are still posted online — where they've received about 14,000 page views. She hopes that speaking out about what happened to her will help someone else. That's why she insisted on using her real name in this story.

"I don't deserve to have child pornography of me up on the Internet," Kressler says. "Nobody deserves to be up there like that. But I'm not going to hide because of it.

"I hope the pictures come down, and I hope the person that posted them can be punished. But the way things are looking right now, I'm shit out of luck."

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