Revenge Porn: 1st Amendment Issue or Crime?

Stalking and harassing people online has been a pastime of some since the Internet went public. The purpose of online harassment has always been to try and humiliate others by posting rude and offensive information about others that offend and embarrass. A new form of harassment has been coined as “Revenge Porn“, the stated intention of which is get back at former lover for some personal grievance by posting nude pictures taken consensually during the relationship. Revenge sites such as UGotPosted.com or IsAnyoneUp.com or its sister domain Revengeporn.com cater towards this activity. Some sites also have the dual purpose of being a dating site. From an investigative point of view we need to consider careful how we approach this issue due to First Amendment concerns and the general investigative issues related to online investigations.

Criminal behavior is not protected by the First Amendment. As with any crime, an investigator must have an idea of what statutes might be involved. Let’s consider the possible factors that might be present in this kind of behavior besides just a relationship gone bad. First, if one or more of the subjects in the pornographic images are a minor, the investigator is dealing with a sex crime. There are serious penalties for the person who took the image as well the one who posted it or possess it. Additionally, hosting child pornography has serious legal repercussions for any website.

Second, if the image is of an adult, was it taken without their consent, also known as video voyeurism? There are numerous laws that might be involved under such circumstances. The National District Attorneys Association has a nice breakdown by states of the possible statutes.

Third, was the pornographic image stolen from the owner? According to their indictments, Hunter Moore and Charles Evens, the evil geniuses behind IsAnyoneUp.com, were not just posting images that were submitted but were actively hacking into individual’s email accounts/cell phones to get images. What they were doing definitely violated numerous hacking statutes. It makes one wonder if there were really that many folks submitting their revenge image or were they just hacking into peoples’ accounts and just stealing them.

Fourth, was there an attempt made to blackmail or extort something of value out of victim to prevent the images from being posted? Obviously, there are laws against this kind of activity in every jurisdiction.

Fifth, does the posting fit under general harassment or more specifically under Internet harassment or cyberstalking? Is the posting part of a broader context of harassment against a person? Finally, does your jurisdiction have a statue that specifically covers this conduct? California has done just that with its new Revenge Porn law. The new law makes it a misdemeanor for individuals to take and then circulate without consent such images online with the intent to harass or annoy.   Kevin Christopher Bollaert, the man behind UGotPosted.com, found out the hard way that the California Attorney General was serious about this method of harassment when he was charged with 31 felony counts of conspiracy, identity theft and extortion.

Absent an affirmative answer to one of the above questions, the investigator may be faced with a scenario of a consensually taken picture of an adult, posted on a website without authorization. Absent the pornographic nature of the image, how many images are posted on websites without specific authorization? You get the idea. Absent a criminal statute, this could simply be considered a civil issue. Key to getting the investigation under way is to answer the following questions:

  1. How old are the individuals in the picture?;
  2. Under what circumstances were the images created (with or without consent)?; 
  3.  How securely were the images kept after being created and who purportedly has them, ie, were they stolen?; 
  4. Were the images posted with or without consent?; and 
  5. Was there a blackmail or extortion attempt made prior to the images being posted or to get them removed?

Answers to these questions will help hone the investigative process and may initially help identify possible suspects if a crime did in fact occur. It may be quite possible that no suspect is identified, such as the case of where the images were taken covertly or were stolen. It then becomes a process of identifying where the images were created and where they were posted. Also as we explained in detail in our book how some images posted online may contain metadata called Exif in the image. This could lead to some possibly useful and identifying information as to the photograph’s source. The investigator may may also have to contact the hosting website and serve legal process to obtain their cooperation.

The process gets much more difficult if the poster anonymously hides their IP address, or the website did not keep any information. If the actual file images can be obtained will they have any meta data that may provide clues to where they were created and how? Clearly, these investigations can be time consuming. Law enforcement has a role to investigate criminal acts but it also has to be prudent in how they allocate limited resources. A true revenge porn incident might be more appropriately handled by civil enforcement action taken by the wronged party.

The problem for the wronged party becomes that search engines crawl websites and frequently capture the posted images from these sites. They are maintained in their cache independent of the revenge site. Also, IsAnyoneUp.com may be down and no longer running as a revenge porn site but there is still a problem. IsAnyoneUp.com was archived by the WayBack Machine. As of the writing of this post some of the material from IsAnyoneUP.com has been removed but not all of it. The result for the victim is that the images that were offensive are now likely archived someplace else on the Internet. You also have to consider how Google and Yahoo and sites like TinEye handle these images in their databases. They have tons of images, which they have in “cache” or maintained somewhere on a server.

Additionally, what happens when the website is hosted in another country? How can you make them remove the image if the website is hosted in Russia? Civil suits can be filed against the hosting company, but extraditing individuals from another country for hosting these illegal images is almost impractical knowing that doing so for child pornography is difficult at best. Trying to get some sanctions for them for posting nude images of former boyfriends/girlfriends would be a major challenge.

The best solution is strengthen the liability and if necessary the criminal statute for someone who maintains the image on their website. There is also always the one thing we recommend that can definitely stop this issue, prevention. Simply don’t let folks take pictures of you with your clothes off! Individuals have to understand that in this day and age the picture you take today can be uploaded and posted for all the world to see in seconds and may never disappear.

PS: This piece was written by both Todd Shipley and Art Bowker

Additional Stories on Revenge Porn

Race To Stop ‘Revenge Porn’ Raises Free Speech Worries

Mom: I found my face on a ‘revenge porn’ website

Judge throws out New York “Revenge Porn” case

Intentan controlar bajo ley el ‘porno de la venganza´

Buscan poner freno al porno de la venganza

Updating Correction Agencies on Bitcoins, Tor and Silk Road

I have been a bit busy lately writing pieces for two different correction websites. In Back to Tor, Silk Road and Bitcoins I revisit the “Dark Web” for corrections and discuss a recent study that found 18% of American drug users had used Silk Road “products. In Bitcoins behind bars: Is it possible?, I explore the possibility that inmates could adopt bitcoins or some other cryptocurrency to conduct illegal enterprises from behind prison walls. Please check them out!