Revenge porntrepreneur Hunter Moore gained notoriety with the website IsAnyoneUp. The site featured nude photos posted by members of the public or, often, by their angry exes—in which case the postings were called “revenge porn.” The site was embarrassing for many, as photos that had been taken in intimate circumstances were now on the Internet for everyone to see—alongside a screenshot of the subject’s Facebook profile, so that anonymity was not possible. From the Facebook profile, it was clear exactly who the person was, where he or she lived (and worked), and how to contact him or her. However, Facebook challenged this practice as a Terms of Service (TOS) violation.
Moore shut down his IsAnyoneUp site in April 2012, amidst some controversy. But now he is back, and asserting that most of his old content will be back online on his new site, HunterMoore.tv (with the exception, he says, of that content which is legally questionable). Moore has also noted that, for some people, he may include home addresses—but commentators have raised the question whether the inclusion of home addresses will encourage stalking, and hence be illegal.
In this column, I will revisit the topic of revenge porn; explain why it is legal in most cases; and discuss why the laws that permit revenge porn need to be reexamined. I will also discuss why the posting of addresses is especially problematic, as it seems to run directly counter to cyberstalking laws.
The Return of Revenge Porn, with New Features?
While the end of Mr. Moore’s ability to use Facebook profiles may make it harder to figure out the identity of a person in a photo, it often is not hard to link lewd photos with real people. As a result, those people who were featured on the old site IsAnyoneUp site have struggled to get their photos taken down.
The problem they face, however, is that while it is revolting and distasteful for a site to host revenge porn, it is not illegal. Indeed, it is protected by a federal statute, Section 230 of the Communications Decency Act (CDA), also known as the CDA’s safe harbor provision. Section 230 protects website operators from being held liable for defamatory or otherwise harmful third-party content that they did not directly post. Hence, a site that allows users free rein to post mean-spirited or embarrassing content is not liable as long as it does not control the posting directly. That’s why a site like IsAnyoneUp can operate above the radar—it’s legal as long as the site operator does not start editing or curating the content. It’s true that a victim who finds her prior sexy photos uploaded can file a civil tort action against the user who posted them, but often, there is no legal recourse against a website operator. Moreover, once the information is posted online, the site operator has no obligation to take it down, no matter how offensive, defamatory, or harmful it may be. Some sites might voluntarily remove offensive content—but sites that profit from being scandalous are counting on such content remaining online.
Of course, there are limits. For instance, the federal Child Protection and Obscenity Enforcement Act makes it illegal to use minors to produce pornography. Thus, if someone posts a picture of an underage person on one of these revenge sites, or if he facilitates the posting of a minor’s photo, he might face criminal liability. Typically, however, sites such as IsAnyoneUp have to promptly remove depictions of minors.
If a person wants to go after the person who uploaded the photos to the site, they may have a cause of action. For example, one might be able to claim that it was a violation of one’s privacy for an ex-lover to post intimate photos that were taken with an expectation that they be kept private. But that argument may not always work. If someone sends a racy photo over a cell phone, it might be hard to claim that such a photo was meant to be purely private, in light of the fact that it was sent over a medium that can easily be shared with others and forwarded on, etc. Thus, even privacy claims are not always slam-dunks, in this context.
Worries Over Possible Cyber Stalking
For a few weeks, the public was worried that Mr. Moore was going to take the revenge porn site one step further by incorporating physical address information tied to a geolocation mapping app. In other words, the fear was that an ex could not only post nude photos of someone, but also include their home address—making it easy for stalkers to learn where the person lives.
This feature more clearly strains the existing legal boundaries of a couple of federal Internet anti-harassment and anti-stalking laws. In addition, many states already have cyberstalking laws on the books, and there is a strong argument that intentionally allowing users to post victims’ photos and addresses would show an intent to facilitate stalking and harassment, and hence could be charged as a criminal act.
Moore’s prior web submission form includes a “Where are they from?” field, but not a place to specify an exact address. It also had many legal statements that users must agree to and click on in order to submit photos. One such statement reads: “By submitting this content you are agreeing to take full responsibility for the content you have submitted.”
But this mapping feature could be the fatal blow to Mr. Moore’s Section 230 defense. University of Maryland law professor Danielle Citron has recently argued that by creating a field for addresses, Moore could be facilitating stalking. “If he is putting up fields with someone’s address and a field ensuring that there’s a map to facilitate stalking, I think there’s an argument to be made that he is engaging in cyber-stalking under federal criminal law.”
But, at least for now, it looks like Moore is not going as far as he initially claimed he would. In December, he appeared to disavow his prior boasts that his new website would allow jilted ex-lovers to post their former partners’ addresses, in addition to their naked photos.
Indeed, Moore told Salon’s Tracy-Clark Flory that he was “drunk and coked out” for his interview with BetaBeat’s Jessica Roy, where he initially made the boast.
However, Moore also told that Salon the claim about the mapping/stalking feature was only a “semi-lie.” He says that he plans to post only the addresses of people who have personally wronged him. But his current stance is still troubling, and might still lead to a charge of aiding and abetting stalking, since, if he is true to his word, he will still publish the addresses of those whom he considers enemies.
What More Can Be Done to Protect Persons Whose Exes Intend to Post Their Nude Photos Online?
The current situation is distressing for many who wonder if their old photos will be back online. To get this site shut down and to avoid the creation of similar sites in the future will require a change to Section 230. There is a strong case for an amendment, as we now have seen how, thanks to Section 230, sites can profit from people’s fear that photos that they considered private will appear on the Internet for all to see. And this ugly business may be lucrative: At one time, Moore earned a reported $13,000 per month from the IsAnyoneUp site.
Moore has also stated in some interviews that victims could pay to remove their photos. That extortion-like possibility also seems to run afoul of the original goals of Section 230, which were as follows: (1) to encourage the Internet to flourish, (2) to enable site operators to permit user participation without fear of lawsuits constantly arising from content that the sites did not directly control, and (3) to allow sites to monitor and take down objectionable content, if they so chose, again without fear of liability.
As it turns out, Section 230 has spawned a collection of websites that traffic in misery and vulnerability. Surely this is not what Congress intended when Section 230 was passed into law. Accordingly, Congress ought to review the existing safe harbor provision of Section 230 It may be that immunity is necessary for many website operators—but it may also be that a duty could be created to remove content if a person is successful in suing the individual who initially posted the harmful content. Thus, if it is in fact defamatory or a violation of someone’s privacy in the first place, perhaps sites like IsAnyoneUp will have a duty to then take the offensive content down.
Prof. Ramasastry, a potential overlooked area of relief is the DMCA. Many of the intimate photographs are self-portraits, with copyright vested in the subject-victim. A take-down notice may assist a victim and provide a cause against the host if not abided. Further, a suit or bill of discovery could be initiated permitted the victim to learn the identity of the submitter and bring a claim against that person.