March 9th, 2015

Behind the Times: Playing Catch-Up with Privacy Law

By: Otis Comorau

Article: Law Firm Founds Project to Fight ‘Revenge Porn, The New York Times, Jan. 29, 2015

While it is no secret that technological advancement often outpaces legal development, the problem is especially severe in the information privacy context. As a recent New York Times article points out, victims of ‘revenge porn’ – pornography uploaded to the internet (frequently by ex-partners) with the intent to shame and humiliate – have resorted to filing copyright claims against websites displaying the embarrassing photographs or videos.

Indeed, despite the near-universal consensus that uploading this kind of information should, without the consent of those pictured, be strictly prohibited, the law is remarkably unclear and outdated. While some states have recently passed statutes criminalizing revenge porn, the majority have failed to address the issue at all. Moreover, under existing tort doctrine, claims for “intentional infliction of emotional distress” are notoriously difficult to win.

Similarly, at the national level, the Federal Trade Commission is just now beginning to recognize the importance of the issue. It is finally taking a more aggressive stance against the practice. Federal prosecutors are following suit as best they can, as they attempt to charge perpetrators under existing “online stalking” and “unauthorized computer access” laws. Such prosecutions are, however, fairly uncommon.

While these changes are laudable, they are grossly insufficient. Modern, technology-based disputes regarding informational privacy are simply poor fits for traditional civil and criminal laws. In the linked article above, for example, the New York Times points out that victims of revenge porn can only file copyright complaints if 1) they took the photographs and/or videos themselves, and 2) they register the photos and/or videos with the United States Copyright Office. Obviously, these requirements present a huge (and wildly unnecessary) constraint upon information privacy enforcement.

But that is exactly the problem, isn’t it? Copyright laws were never designed to meet the needs of revenge-porn victims. Similarly, charging perpetrators with “online stalking” or “unauthorized computer access” is merely a bait and switch. The issue, as everyone knows, is not really “stalking,” or whether an ex-partner “downloaded a file without permission.” The issue is that, through whatever means, extremely personal information ended up on the internet for everyone to see. This is unacceptable. Everyone has, or should have, a right to keep such information private. Unauthorized publication of that information should be prohibited, end of story.

In short, the status quo is unacceptable. Revenge porn disputes cannot be adequately addressed through the existing tort system, the copyright office, or federal “stalking” charges. On the contrary, they present new, technology-based concerns that do not fit well into existing legal doctrine. The country should therefore follow the lead of the 12 states that criminalized revenge porn last year. It is time to pass a national law outlawing the practice.