Public Displays of Impotence: California's "Revenge Porn" Law Isn't Worth the Look

Revenge porn, like flag- burning, is an activity for which one can turn up few advocates. The visceral unpleasantness of its title — revenge porn — renders it something a near-unanimous percentage of society would heartily condemn, even if they don't know exactly what it is.

Also known as "involuntary porn," revenge porn is the toxic byproduct of an erstwhile couple's consensual sexual photos or videos mixed with a relationship gone south and the omnipresence of the web. But, like flag-burning, rendering revenge porn illegal will prove to be nigh-impossible. In fact, it'll be trickier than flag-burning: The Internet is involved.

California last month took the novel step of outlawing this fiendish behavior. It did so, however, via legislation that's more loophole than law.

To start with, "selfies" don't come under the purview of the law (and, sadly, "selfies" is now a term legal scholars and legislators have been forced to take up). So, if a man films himself doing something ostensibly lewd and gives it to his significant other, and that person publicizes it — no problem there. If the significant other does the filming, however, then the law is applicable.

But not really.

In all cases, the law only applies to the initial upload — and not the subsequent downloads and widespread circulation promulgated by the vast horde of depraved voyeurs populating the web. "Those million other redistributions are outside the scope of the law," says Eric Goldman, a law professor at Santa Clara University and director of its High Tech Law Institute.

Well, this is unfortunate — because that's kind of how the Internet works.

Third-party websites, even ones designed to goad users into sharing their former paramours' steamy videos, are also untouched by California's new law. Nor are hackers who steal others' intimate material and subsequently disseminate it.

But even in a situation in which a disgruntled ex clearly filmed the footage in question before exposing it to society, California's legislation doesn't allow for doors to be kicked in and cuffs to be slapped on just yet — if ever.

That's because it requires prosecutors to prove those posting revenge porn did so with the "intention of inflicting serious emotional distress." This is a rather high bar, and Goldman doesn't foresee the law ensnaring many revenge pornographers — if any at all. "Without having the defendant admitting it ... it may be impossible for a prosecutor to prove this was posted with the intention of causing 'serious emotional distress,'" he says.

Revenge may indeed be a dish best served cold. But just try legislating that.

 
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