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Walters: Some Aspects of Calif.'s SB 255 Go Too Far

Walters: Some Aspects of Calif.'s SB 255 Go Too Far
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Sep 13, 2013 12:15 PM PDT    Text size: 

SACRAMENTO — Both the state Senate and Assembly passed SB 255 this week, possibly giving California law enforcement officials their first tool to battle so-called “revenge porn."

Gov. Jerry Brown has 30 days to sign the bill into law. If signed, SB 255 would take effect immediately.

SB 255, introduced by state Sen. Anthony Cannella, would amend a section of the Penal Code and make it a crime to "cause serious emotional distress" to others by distributing over the Internet nude or semi-nude images of them.

Images in violation, as defined by the bill, would include portions of genitals and, in the case of a female, portions of breasts below the top of the areola, that is either "uncovered or visible through less than fully opaque clothing."

SB 255 would punish convicted operators with six-month jail sentences and imposing fines of $1,000 — even if the pictures were originally taken with consent.  Subsequent fines would amount to penalties not exceeding $2,000, along with one-year jail sentences.

The bill would prohibit only images taken by the person posting them, meaning that self-photos aren’t protected.

XBIZ asked adult entertainment attorney Lawrence Walters of the Walters Law Group on Friday to discuss the piece of legislation's ramifications, particularly for online adult operators.

XBIZ: Larry, what's your take on California's legislation to curb revenge porn?

LARRY WALTERS:  It goes without saying that the activity of ‘revenge porn’ is reprehensible and slimy. The perpetrators should face legal consequences.

But SB 255 goes too far in some ways, and is oddly inadequate in others. Initially, I have a fundamental concern with criminalizing the publication of material that is still considered protected speech. The agreement to maintain the privacy of intimate photographs does not take those images outside the realm of First Amendment protection. Imposing jail time against those who record and publish such images seems counter to free speech principles, and somewhat of an over-reaction to the problem.

A better solution may have been to create a private civil cause of action against those who released such private photos, along with statutory damages and attorneys fees. Injunctions could also be available against the publishers of material found to violate the state. There would be no shortage of California attorneys coming to the rescue of ex-girlfriends (and boyfriends) who have been victimized by this conduct, so long as there was a financial incentive to do so.

 A crushing financial judgment would be sufficient punishment in these cases, without slicing off another piece of content that would otherwise be protected by the First Amendment, and putting it in the criminal realm. The state of Florida rejected a similar revenge porn proposal last term, after serious constitutional questions were raised about the proposed statute’s validity. 

XBIZ: How about self-photos? The bill was changed by lawmakers in the last hours to not protect those types of pictures.

WALTERS: While the bill seeks to severely punish those who record and release intimate moments, it does nothing to address the more common phenomena of "selfies";  i.e., pictures taken by one’s self, with one’s own camera. The California bill requires that the perpetrator also be the photographer. The same injustice is done to a victim who’s private photo is released by an ex-boyfriend who received a self-produced, erotic "gift" before the relationship soured.  Under SB 255, those victims appear to be out of luck.

XBIZ: How about other concerns with the bill?

WALTERS: The final concern with the bill relates to its potential application of the criminal penalties to online service providers or websites that might ultimately distribute these pictures uploaded by users, without any knowledge that they were made public without necessary consent. There is no realistic way that a website operator could determine whether each erotic image provided by a user was accompanied by the necessary level of approval or consent by the person(s) depicted.  Section 230 and DMCA safe harbor specifically recognize that such burden would be unreasonable.

However, given the potential for application of accomplice liability theories, such as "aiding and abetting" or "conspiracy," an online service provider could theoretically get dragged into a criminal prosecution under this new bill, as a party who substantially assisted in the publication of the image, or who formed an agreement to publish the image.  Exemptions should be built into any law like this, protecting unwitting website operators who merely provide web space for users to upload material of their choosing. Both the First Amendment and the policies underlying Section 230 immunity require this sort of exemption.

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