clock menu more-arrow no yes

Filed under:

A federal ‘revenge porn’ ban could transform online harassment laws

A long-sought bill reignites a long-standing debate

House Armed Services Committee Hears Testimony On Sexual Harassment At Fort Hood Photo by Chip Somodevilla/Getty Images

The US could be on the verge of passing the first federal law against nonconsensual pornography or “revenge porn.” If it does, it could reignite a debate over the balance between punishing serious harms and limiting free expression.

Lawmakers in 46 states (as well as Guam and the District of Columbia) have already passed bans on nonconsensual pornography: nude or sexually explicit images distributed without their subjects’ consent. But activists have long called for a federal law to replace the patchwork of state laws — and now, they’re on the cusp of getting it.

A new measure that would ban knowingly or recklessly distributing “intimate visual depictions” of non-consenting subjects has been added as an amendment to the Violence Against Women Act, a reauthorization of a popular 1994 bill meant to protect victims of domestic abuse and assault. The measure passed the House of Representatives in March and currently awaits a vote in the Senate. If it’s ultimately signed into law, offenders would face up to two years in prison for each person whose images they distribute. It would be the first time US federal law has seriously tackled nonconsensual porn, with potentially far-reaching implications for anyone hosting user-uploaded images online.

The new measure first appeared in 2019 as the standalone SHIELD Act (or the Stopping Harmful Image Exploitation and Limiting Distribution Act), introduced by Rep. Jackie Speier (D-CA) and crafted with help from Cyber Civil Rights Initiative (CCRI) co-founder Mary Anne Franks. The CCRI said the bill saved victims from a “confusing patchwork” of state laws, and in an email to The Verge, Franks called the bill “pretty close to ideal.”

Unlike many anti-nonconsensual pornography rules, the SHIELD Act provisions aren’t contingent on offenders’ motivations — whether, for instance, they intended to harm the victim. It only requires that they knew (or recklessly ignored the possibility) that the image was being shared without consent and that the subject had a reasonable expectation of privacy. That will make prosecutions of offending sites far easier, but it also raises new concerns about possible threats to free expression.

Jessica Magaldi, a Pace University law professor who published a review of “revenge porn” statutes last year, says that’s a relatively rare approach that she’d like to see adopted more broadly. “I would say many of the states are misguided in their attempts,” she says. “They are overly concerned with the intent of the perpetrator.”

Despite the name, most “revenge porn” incidents aren’t actually about revenge. The CCRI estimates that around 20 percent of cases are specifically aimed at causing harm, while “the vast majority are motivated by something else: a desire for profit, notoriety, social standing, amusement, voyeurism, or no particular reason at all,” says Franks. “Far too many state laws treat nonconsensual pornography as a form of harassment, which it only sometimes is, rather than as an invasion of sexual privacy and a form of sexual exploitation, which it always is.”

As a federal criminal law, the amendment also avoids a long-standing debate over Section 230 of the Communications Decency Act, which limits websites’ liability for content hosted by users. Section 230 shields sites against civil suits and state laws, but not federal criminal charges. So law enforcement could theoretically prosecute a site whose owner was intentionally soliciting and posting nonconsensual porn.

But some civil liberties groups have raised concerns about open-ended nonconsensual pornography bills. The ACLU warns that similar state-level laws could stop journalists from publishing newsworthy images of politicians like Anthony Weiner, for instance, or punish booksellers for not verifying the source of any nude image in a publication. (The American Civil Liberties Union (ACLU) tells The Verge that it hasn’t formulated a position on the SHIELD Act, but it’s challenged other bills in recent years.) Depending on how courts interpret “reckless disregard” for someone’s consent or privacy, sharing a nude or sexual image could be risky if you simply don’t know where it comes from. The SHIELD Act provision currently facing Congress includes an exception for images that touch on “a matter of public concern,” but some people may stay silent rather than risk having to argue that case in court.

Legal blogger and Santa Clara University School of Law professor Eric Goldman questions whether the bill would meaningfully improve the legal landscape when there are already laws covering harassment, invasion of privacy, and other overlapping issues. “What case is it designed to solve that isn’t already addressed by a panoply of other laws, especially if there’s been a tidal wave of new nonconsensual pornography laws at the state level?” Goldman asked in an interview with The Verge. “If we actually want to solve problems, we have to be very precise about how this tool is additive and responsive.”

As Goldman points out, a federal ban alone wouldn’t punish nonconsensual pornography perpetrators. The Department of Justice would have to dedicate time and personnel to catching offenders and bringing cases against them. “Are they going to devote resources to this?” he asks. If not, law enforcement could use the rule to stack charges against a few chosen targets — but many perpetrators would still be let off the hook.

Then there’s the question of whether the laws will withstand constitutional scrutiny. Many nonconsensual pornography laws have passed at the state level, but while several courts have examined them, there’s no consensus yet about whether they violate the First Amendment. Vermont’s Supreme Court upheld its law in 2018, although the case testing it was eventually dismissed. A Wisconsin appeals court reached the same conclusion, as did the Supreme Court of Illinois. These courts found “overwhelmingly” that there’s a compelling interest in protecting the privacy of intimate photos and videos, says Magaldi’s co-author Jonathan Sales, a lecturer at Bentley University.

The laws haven’t been uniformly upheld, though. A Texas appeals court shot down a law similar to the SHIELD Act in 2018, saying the rule wasn’t narrowly tailored enough to avoid potentially chilling effects on free expression. (The law was amended to require an “intent to harm” the person involved.) And even when laws have been upheld, judges have conceded that only the Supreme Court can really settle their First Amendment implications. The Supreme Court had a chance to examine a nonconsensual pornography case in 2019, but it refused to hear the appeal of a woman convicted under Illinois law.

If the court takes up a case in the future, it will have to weigh whether preventing harm to victims risks chilling speech. Nonconsensual pornography doesn’t clearly fall under an established exception to the First Amendment — narrow categories like threats or defamation — and Sales notes that the court rarely creates new exceptions. But courts could still acknowledge that there’s a valid public interest in protecting people’s privacy.

“There is a clear record of people having been damaged,” says Sales — including through public embarrassment and lost jobs, and in a way that’s particularly acute for women, who make up the majority of “revenge porn” victims. “At the intersection of these damages that people suffer is a compelling governmental interest in regulating this.”

For now, advocates are mostly concerned with getting the provision into law. The Violence Against Women Act could still get held up by the Senate or have the SHIELD provisions stripped out in reconciliation. Speier has made multiple attempts at passing federal nonconsensual porn bans, including the SHIELD Act and the 2017 ENOUGH Act, but never received a vote. But either way, Magaldi believes the issue will only become more pressing. “This just goes the way of many laws that affect women,” she says. “They take a while for people to even realize that they’re important.”