{"id":2346,"date":"2014-10-17T03:01:15","date_gmt":"2014-10-17T03:01:15","guid":{"rendered":"http:\/\/jolt.richmond.edu\/?p=2346"},"modified":"2019-03-08T19:52:26","modified_gmt":"2019-03-09T00:52:26","slug":"its-time-for-revenge-porn-to-get-a-taste-of-its-own-medicine-an-argument-for-the-federal-criminalization-of-revenge-porn","status":"publish","type":"post","link":"https:\/\/blog.richmond.edu\/jolt\/2014\/10\/17\/its-time-for-revenge-porn-to-get-a-taste-of-its-own-medicine-an-argument-for-the-federal-criminalization-of-revenge-porn\/","title":{"rendered":"It\u2019s Time for Revenge Porn to Get a Taste of Its Own Medicine: An Argument for the Federal Criminalization of Revenge Porn"},"content":{"rendered":"

\"pdf_icon\"DownloadPDF<\/a><\/p>\n

Cite as: Taylor Linkous, It\u2019s Time for Revenge Porn to Get a Taste of Its Own Medicine: An Argument for the Federal Criminalization of Revenge Porn, 20 Rich. J.L. & Tech. 14 (2014), http:\/\/jolt.richmond.edu\/v20i4\/article14.pdf.<\/p>\n

Taylor Linkous<\/p>\n

I.\u00a0 Introduction<\/h2>\n

[1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Throughout history, pornography and technology have enjoyed a symbiotic relationship, each playing a significant role in the growth and widespread success of the other.\u00a0 From the VCR and camcorders to the Polaroid camera and the Internet, the pornography industry has always accelerated the growth of new technologies, paving the way for these new services to be introduced into mainstream society.[1]\u00a0 Most of these new technologies were appealing to creators and consumers of pornography because the new technologies brought an increased sense of privacy.[2]\u00a0 For example, much of the success of the Polaroid camera is said to come from the fact that people felt they could take explicit photos without having to go to the store to get the film developed.[3]\u00a0 Similarly, pornography and the promise of privacy helped drive the success of cable TV and the VCR.[4]\u00a0 As Peter Johnson writes,<\/p>\n

Videotape first emerged as a cheap and efficient alternative to film (later kinescope) for TV production.\u00a0 Its development for home use owes its birth to Sony and Betamax but its maturity to porn.[5]<\/p>\n

Correspondingly, with the introduction of these new technologies the porn industry has continually been able to grow and push the limits.\u00a0 With the launch of the VCR, the porn industry gained a new audience of people willing to watch their films; \u201c[i]nstead of travelling to a disreputable store, viewers could watch films at their convenience at home.\u201d[6]\u00a0 This audience has only continued to grow with the introduction of revolutionary technologies, especially the Internet, which have made pornography easy and cheap to produce by lowering the barriers to entry and transaction costs.[7]\u00a0 As Coopersmith states, \u201c[e]ssentially, cyberporn has become an economist\u2019s ideal free good: pornography is easily accessible, incurs minimum transaction costs, and enjoys a large demand.\u201d [8]\u00a0 Thus, the relationship between technology and pornography has existed for some time now and the bond between the two seems unbreakable.<\/p>\n

[2]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 While this historical interdependence has clearly been mutually beneficial for the porn industry and new technologies, there has been collateral damage.\u00a0 For example, the Internet has significantly exacerbated the distribution and viewing of child pornography, and the cell phone started a \u201csexting\u201d craze among teens and adults.[9]\u00a0 In recent years, this collateral damage has come in the form of harassment, humiliation, invasion of privacy, and loss of reputation with the rise of revenge porn.\u00a0 With the growth and normalization of the camera\/video phone and modern ease with which individuals can now create, manage, and navigate websites, has come the revenge porn phenomenon.\u00a0 Just like Polaroid cameras, camera phones have given individuals a sense of privacy, making them feel comfortable taking and sending explicit pictures and videos.[10] \u00a0A survey conducted by Match.com in 2012 found that out of 5,000 adults, 57% of men and 45% of women had received an explicit photo on their phone and 38% of men and 35% of women had sent one.[11]\u00a0 Unfortunately, the sense of privacy encouraging this behavior is false, because unlike Polaroid photographs, these pictures and videos can easily be uploaded to a revenge porn website by an ex-lover, \u201cfriend,\u201d hacker, or anyone else who happens to come upon them.\u00a0 Once this happens, those seemingly \u201cprivate\u201d pictures he or she probably thought only their boyfriend or girlfriend would view are then available for the world to see.<\/p>\n

[3]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Currently, the act of posting revenge porn is a crime in only fourteen states\u2014Arizona, California, Colorado, Delaware, Georgia, Hawaii, Idaho, Maryland, New Jersey, New York, Pennsylvania, Utah, Virginia, and Wisconsin.[12]\u00a0 However, over the past year, as victims of revenge porn increasingly advocate for laws criminalizing revenge porn, many more states are considering such legislation.[13]\u00a0 Legal scholars differ in their opinions on the best way to deal with revenge porn.\u00a0 Some argue a criminal law is unnecessary as victims are already able to file civil suits against those who posted the pictures based on claims such as copyright infringement, intentional inflection of emotional distress, or defamation.[14]\u00a0 Others argue revenge porn should be treated like other forms of online sexual harassment and many contend that there should be an amendment to \u00a7 230 of the Communications Decency Act (\u201cCDA\u201d) to allow victims to go after the revenge porn websites.[15]<\/p>\n

[4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This comment analyzes the various potential legal approaches to dealing with revenge porn and posits that a federal law criminalizing the dissemination of revenge porn is necessary to combat this growing trend.\u00a0 Part II provides background information on revenge porn and further analyzes how the successful relationship between technology and pornography led to the rise of revenge porn.\u00a0 Part III analyzes the different civil remedies currently available to revenge porn victims and argues these are not practicable solutions.\u00a0 Part IV discusses the current state laws criminalizing revenge porn and the legal challenges faced by those affected by revenge porn and legislators seeking to tackle this problem.\u00a0 Finally, Part V proposes that a federal law criminalizing revenge porn is the best solution to this unsettling new movement.<\/p>\n

 <\/p>\n

II.\u00a0 Background Information on Revenge Porn and Its Rise to Recognition<\/strong><\/h2>\n

[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 As stated above, technology and pornography have lived symbiotically with each other for quite some time.\u00a0 The introduction of the Internet made access to pornography easier and widened the audience by allowing people to view pornography in the comforts of their own home.\u00a0 Moreover, the Internet and other new technologies, such as the Smartphone, have made it easy and more appealing for people to create and distribute Do-It-Yourself (\u201cDIY\u201d) pornography.\u00a0 Below I will first provide background information on revenge porn and explain what this trend is all about.\u00a0 Then, I will analyze how technological progress helped lead to the rise in revenge porn.<\/p>\n

A.\u00a0 What Is Revenge Porn?<\/strong><\/h3>\n

[6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Revenge porn is a nude picture or video that is publicly shared on the Internet, usually by an ex-lover, for the purpose of humiliation.[16]\u00a0 Despite the relatively recent media attention, revenge porn has been around for years.\u00a0 As far back as 2000, an Italian researcher identified a new genre of pornography where explicit pictures of ex-girlfriends were being shared in Usenet groups.[17]\u00a0 Later, in 2008, the first websites and blogs completely dedicated to this type of porn started to pop up.[18]\u00a0 Then in 2010, the first person went to prison for posting revenge porn in New Zealand.[19]\u00a0 This person was Joshua Ashby and he was found guilty of distributing an \u201cindecent model or object\u201d to the public when he posted a picture of his naked ex-girlfriend on Facebook.[20]\u00a0 That same year, Hunter Moore established one of the most popular revenge porn sites, IsAnyoneUp.com.[21]<\/p>\n

[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Normally on revenge porn websites, the explicit images or videos are posted on the site and submitted with the victim\u2019s name, a link to his or her Facebook, and other personal information.[22]\u00a0 Citing Cyber Civil Rights Statistics on Revenge Porn from 2013, Danielle Keats Citron and Mary Anne Franks, law professors and anti-revenge porn advocates, stated, \u201c[i]n a study of 1,244 individuals, over 50% reported that their naked photos appeared next to their full name and social network profile; over 20% reported that their e[-]mail addresses and telephone numbers appeared next to their naked photos.\u201d[23]\u00a0 On IsAnyoneUp.com, each submission to the website usually included a depiction of the man or woman\u2019s Facebook or Twitter thumbnail, pictures of them clothed, and pictures of them \u201cexposing their genitalia, or even in some cases, engaging in sexual acts.\u201d[24]\u00a0 Another revenge porn website, MyEx.com, also includes first and last names and links to social media information along with the images posted.\u00a0 This site also charges victims upwards of $500 to remove the photographs.[25]\u00a0 Posting personal information along with these images threatens the victim\u2019s safety, enabling strangers to stalk and harass them.\u00a0 Although the name \u201crevenge porn\u201d comes from the idea that these photos are posted by jilted ex-lovers, sometimes the pictures are reportedly acquired \u201cthrough hacking, theft by repair people or false personal ads.\u201d[26]<\/p>\n

B.\u00a0 Internet + Smartphones + DIY Porn = Revenge Porn<\/h3>\n

[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In 1995, when Congress took its first stab at regulating the Internet with the introduction of the CDA as part of the Telecommunications Act amendments,[27] less than 0.4% of the world\u2019s population was using the Internet.[28]\u00a0 Then, only two years after the CDA was passed, the Supreme Court held sections 223(a) and 223(d) unconstitutional in Reno v. ACLU,[29] essentially leaving the immature Internet \u201cfree to develop without government regulation of pornography.\u201d[30] \u00a0With the ability to freely experiment and develop during this time of very little regulation, technology and pornography\u2019s relationship thrived.<\/p>\n

[9]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Internet allowed the porn industry to bypass zoning laws, age restrictions, and postal regulations, while pornography aided the Internet\u2019s quick development by constantly pushing the limits of new technologies.[31]\u00a0 For example, \u201c[i]n 2001, Blaise Cronin and Elisabeth Davenport stated, \u2018It is universally acknowledged by information technology experts that the adult entertainment industry has been at the leading edge in terms of building high-performance Web sites with state-of-the-art features and functionality.\u2019\u201d[32]\u00a0 So, with little government regulation over the past decade, the Internet and pornography have consistently matured and prospered.<\/p>\n

[10]\u00a0\u00a0\u00a0\u00a0 New and improved technologies allowing pornographers to provide images and videos quicker, cheaper, and more efficiently have certainly turned pornography into a booming business.[33]\u00a0 In 2006, there were about 4.2 million pornographic websites and the annual pornography revenue in the United States was over $13 billion.[34]\u00a0 Additionally, easy access to these websites has increased the amount of viewers.[35]\u00a0 The user-friendly nature of pornography on the Internet \u201cmeans that many who would never have sought it out before consume it regularly.\u201d[36]\u00a0 Unfortunately, this class of people is likely largely made up of curious children, who have explicit, hard-core porn available at their fingertips, quite literally.[37]\u00a0 The widespread use of Smartphones in recent years has made pornography even easier to access and has become the primary way people view pornography.\u00a0 According to statistics report from PornHub, the majority of porn in the United States is now viewed using smartphones.[38]\u00a0 The website reported that 52% of its content was being viewed on mobile devices, a 10% increase from 2012, when it was reported only 47% of the website\u2019s content was being viewed on smartphones.[39]<\/p>\n

[11]\u00a0\u00a0\u00a0\u00a0 Not only have the Internet and smartphones increased access for viewers, but both have also made it easy for amateur pornographers to distribute their work and encourage people to engage in \u201cDIY porn.\u201d[40]\u00a0 Dr. Gail Salts, an Associate Professor of Psychiatry at New York Presbyterian Hospital, stated,<\/p>\n

What\u2019s new is technology at a very cheap cost, which allows you to do it and merchandize it in a greater way. . . .\u00a0 You can do it yourself.\u00a0 You can do it with a flip-cam.\u00a0 You can do it with your phone and you can put it up with no effort.[41]<\/p>\n

Thus, not only have advanced technologies made access to pornography very simple and increased the number of pornography consumers, they have also fostered more user-generated pornographic content.<\/p>\n

[12]\u00a0\u00a0\u00a0\u00a0 I argue that the rise in revenge porn is a culmination of these technological advancements, easy accessibility, and the DIY porn trend, which are all a result of the lifelong partnership between technology and pornography.\u00a0 The Internet and smartphones have made it extremely easy to create explicit photographs, send them to others, and upload them to websites.\u00a0 Moreover, an increased sense of privacy and anonymity has encouraged more people to engage in this behavior.\u00a0 All of these factors had a role in creating the perfect storm for revenge porn to catch on and begin ruining the lives of many victims.[42]<\/p>\n

C.\u00a0 The Negative Effects of Revenge Porn<\/h3>\n

[13]\u00a0\u00a0\u00a0\u00a0 While technology and pornography likely will continue to benefit from their advantageous relationship and look onwards to the next big development, the negative impact their recent revenge porn progeny has on its victims is significant and profound.\u00a0 Holly Jacobs, a Florida woman who is now a strong advocate of strengthening laws against revenge porn and who founded the website End Revenge Porn, has been significantly affected by revenge porn.[43]\u00a0 Jacobs found out from a friend that nude photos she had sent to her ex-boyfriend had been posted on her Facebook and then later to hundreds of revenge porn websites.[44]\u00a0 Even more disturbing was that her name, e-mail address, and place of business were posted along with the pictures.[45]\u00a0 As a result of victims\u2019 personal information being posted with their pictures, 49% of the victims of revenge porn have said they have been harassed or stalked online by users who saw their material.[46]\u00a0 Victims are extremely fearful of stalkers and often struggle with anxiety and panic attacks.[47]\u00a0 More than 80% of revenge porn victims have experienced severe emotional distress.[48]\u00a0 Unfortunately, researchers have found that this anxiety felt by victims of cyber harassment gets worse over time.[49]\u00a0 In fact, some victims have committed suicide.[50]<\/p>\n

[14]\u00a0\u00a0\u00a0\u00a0 This extreme anxiety is exacerbated by the detrimental effects revenge porn has on victims\u2019 professional lives.\u00a0 A simple search of a revenge porn victim\u2019s name on the Internet quickly reveals these explicit pictures, costing many of them their jobs and preventing others from finding work.[51]\u00a0 Moreover, once these images are on the Internet, it is next to impossible to have them removed.[52] \u00a0Another victim speaking under the pseudonym, Sarah, detailed her efforts to get her explicit photos removed from hundreds of revenge porn websites.[53]\u00a0 Sarah could not afford filing a civil suit, so she filed a Digital Millennium Copyright Act (\u201cDMCA\u201d) takedown request, stating that her ex-boyfriend was engaging in copyright infringement.[54]\u00a0 However, many of the websites hosting her pictures were located in foreign countries, and thus outside the United States\u2019 jurisdiction.[55]\u00a0 Sarah was unable to get the photos removed from the Internet, and ultimately changed her name.[56]<\/p>\n

D.\u00a0 A Brief Look at a Few Revenge Porn Websites and Their\u00a0Notorious Operators<\/h3>\n

[15]\u00a0\u00a0\u00a0\u00a0 The extremely popular revenge porn website mentioned above, IsAnyoneUp.com, was run by Hunter Moore.\u00a0 The site received 30 million page views a month and featured thousands of nude pictures.[57]\u00a0 Moore stated he received 10,000 image submissions in three months and his site was generating $8,000 in advertising revenue per month.[58]\u00a0 Not only did this site solicit for naked photos, but additionally the submission form asked for the person\u2019s name, link to their Facebook or Twitter page, and other personal information.[59]\u00a0 Moore shut down IsAnyoneUp.com in April 2012 due to legal pressures involving child pornography.[60]\u00a0 Interestingly enough, Moore ultimately sold the website to James McGigney, owner of Bullyville, an anti-bullying site.[61] \u00a0However, Moore quickly launched a new site, HunterMoore.TV, which he bragged would still allow people to submit naked photos of exes but would also include \u201cmapping stuff\u201d allowing users to stalk those pictured.[62]\u00a0 Although Moore later denied this statement and claimed HunterMoore.TV would not feature this \u201cmapping stuff,\u201d the idea is not too far off from his work in the past.[63]<\/p>\n

[16]\u00a0\u00a0\u00a0\u00a0 Moore confidently argues he is shielded from liability by \u00a7 230 of the CDA, an issue that will be discussed further below.[64]\u00a0 While \u00a7 230 of the CDA does state that websites are not liable for content submitted by their users, it does not protect Moore from liability for federal criminal charges, such as conspiracy.\u00a0 In fact, in late January of 2014, Moore and alleged accomplice, Charles Evens, were indicted on fifteen counts.[65]\u00a0 These counts included conspiracy, seven counts of unauthorized access to a protected computer to obtain information, and seven counts of aggravated identity theft.[66]\u00a0 According to the indictment, Moore paid Evans several times to hack into victims\u2019 e-mail accounts and steal naked pictures in order to post on his website, IsAnyoneUp.com.[67]\u00a0 If he is convicted, Moore faces up to five years for the conspiracy charge and computer hacking counts, and up to two years for aggravated identity theft.[68]<\/p>\n

[17]\u00a0\u00a0\u00a0\u00a0 Another fellow revenge porn proprietor, Kevin Christopher Bollaert was arrested on thirty-one counts of conspiracy, identity theft, and extortion in California for his role in creating the website, ugotposted.com.[69]\u00a0 The site is no longer operating, but when it was, Bollaert took it a step further by charging victims from $250 to $350 to remove the images through another website, changemyreputation.com.[70] \u00a0Also, Bollaert went as far as to require that the victim be identified by name, age, and other information.[71] \u00a0Additionally, a federal district court judge in Ohio ordered Bollaert and his co-founder of ugotposted.com, Eric Chason, to pay a woman $385,000 for posting explicit photos of her on the website without her consent.\u00a0 The woman filed suit in May 2013 after discovering explicit pictures of herself as a minor had been distributed on ugotposted.com without her knowledge or consent.[72] \u00a0The default judgment against Chason and Bollaert included $150,000 for several child pornography counts, $10,000 for a right of publicity count, and $75,000 in punitive damages.[73]<\/p>\n

<\/h2>\n

III.\u00a0 Potential Civil Remedies Available to Revenge Porn Victims[74]<\/h2>\n

[18]\u00a0\u00a0\u00a0\u00a0 Some legal scholars argue there is no need for criminal statutes because victims are already able to file civil suits against the people who posted their pictures.[75]\u00a0 For example, tort laws such as intentional infliction of emotional distress, public disclosure of private information, defamation, or invasion of privacy may be available for some victims of revenge porn.[76]\u00a0 Aside from the fact that these lawsuits are expensive and do not deter people from posting the images, \u00a7 230 of the CDA shields revenge porn websites from tort liability.[77]<\/p>\n

[19]\u00a0\u00a0\u00a0\u00a0 One way around \u00a7 230 of the CDA is for the victim to sue the website for copyright infringement.\u00a0 However, this option is available only if the person took the photograph or video.\u00a0 If the person took the photograph or video, then he or she owns the copyright and can send a takedown notice to the website under the DMCA.[78]\u00a0 If the website refuses to comply with the takedown notice, then the person is able to sue the website for copyright infringement.\u00a0 While these civil remedies are accessible to some revenge porn victims, they are expensive, inconsistent, inefficient, and do very little to discourage people from posting revenge porn in the first place.<\/p>\n

A.\u00a0 Tort Law Is Not the Best Answer<\/h3>\n

[20]\u00a0\u00a0\u00a0\u00a0 As stated, some victims are able to file civil suits under existing privacy law or torts such as intentional infliction of emotional distress, defamation, or public disclosure of private information.[79]\u00a0 Some people argue that the tort of intentional infliction of emotional distress should be used to deal with revenge porn and other forms of online harassment because of its flexibility.[80]\u00a0 Further, the common law tort of intentional infliction of emotional distress \u201creflects a desire to impose liability on both the first creator of the harm and the entity that enabled the harm.\u201d[81]\u00a0 Alternatively, there are several common law torts that are derived from the right to privacy and potentially available to victims of revenge porn: appropriation, false light, disclosure or wrongful publication of private facts, and intrusion.[82]\u00a0 There is also defamation, which requires the plaintiff to show the defendant made a false and defamatory statement that harmed the plaintiff\u2019s reputation.[83]<\/p>\n

[21]\u00a0\u00a0\u00a0\u00a0 All of the above mentioned civil remedies are inadequate.\u00a0 First of all, filing and litigating a civil suit takes lots of time and money that many victims of revenge porn do not have.\u00a0 Revenge porn victims are most often private individuals who are not equipped with the necessary financial resources to litigate one of these suits.[84]\u00a0 Additionally, it is very difficult to prove who actually posts revenge porn because people can easily submit photographs and videos anonymously.[85]\u00a0 As discussed above, sometimes unknown hackers are the ones who submit these images.\u00a0 While posters of revenge porn are able to remain anonymous, taking civil action means revenge porn victims likely will have to face more unwanted publicity.[86]<\/p>\n

[22]\u00a0\u00a0\u00a0\u00a0 Moreover, for all of the money spent litigating such a suit, there is little reward.\u00a0 Most of the time, people who post revenge porn will not be able to pay damages, even if revenge porn victims successfully litigate one of these cases.[87]\u00a0 Even more concerning, the reality is that once these pictures are posted to a revenge porn website, even if the victim is able to legally force the user or website to take them down, the pictures are likely to spread all over the Internet and could easily pop back up again at any time.[88]\u00a0 As Nancy Kim states, \u201c[t]here is no combination injury in the offline world because there is no other method of distribution that is as inexpensive, accessible, widespread, and difficult\u2014if not impossible\u2014to retrieve.\u201d[89]\u00a0 Further, a civil suit may allow the victim to receive damages and could lead to the picture being taken down, but it does little to prevent this type of thing from happening in the future.\u00a0 Thus, a civil suit is extremely costly, barely fixes the damage caused by revenge porn, and does not discourage people or websites from posting these images in the first place.<\/p>\n

B.\u00a0 Section 230 of the CDA<\/h3>\n

[23]\u00a0\u00a0\u00a0\u00a0 Civil remedies also are inadequate for a revenge porn victim because the actual websites posting their explicit photographs are likely protected from liability under \u00a7 230 of the CDA.\u00a0 Section 230 protects website operators from liability stemming from its users\u2019 posts, stating \u201c[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.\u201d[90]\u00a0 Section 230 was written as a way to combat novel legal issues arising from the widespread use of the Internet.[91]\u00a0 While part of the CDA was struck down as unconstitutional, the defenses provided in \u00a7 230 endured.[92]<\/p>\n

[24]\u00a0\u00a0\u00a0\u00a0 There are two defenses available for websites under \u00a7 230.\u00a0 The first is one I have briefly touched on, which protects websites from being held liable as publishers of the content posted by their users, as long as the websites did not create it.[93]\u00a0 The second defense protects providers of interactive computer services from liability on account of \u201cany action voluntarily taken in good faith to restrict access to or availability of material that the provider considers obscene, lewd, harassing, or otherwise objectionable.\u201d[94]\u00a0 Section 230 of the CDA further states that the law will not have an effect on other federal criminal statutes, but \u201c[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.\u201d[95]\u00a0 Thus, criminal liability for such actions imposed under federal law is not covered by the CDA\u2019s protections, but websites likely are immune from the torts previously discussed above.<\/p>\n

[25]\u00a0\u00a0\u00a0\u00a0 While most of the cases applying \u00a7 230 of the CDA have held websites immune from liability, the Ninth Circuit recently held a website liable for the illegality of hosted content because it helped create the content.[96]\u00a0 In this case, the Fair Housing Councils of San Fernando Valley and San Diego brought action against Roommates.com alleging the website violated the Fair Housing Act and state laws.[97]\u00a0 The part of the website alleged to offend the Fair Housing Act and state laws was information provided by subscribers in response to questions written by Roommate.com.[98]\u00a0 Thus, the court held this part of the website was actually developed by Roommate.com: \u201cRoommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information.\u201d[99]\u00a0 This case may be applicable to revenge porn websites.\u00a0 While many of the websites claim they are shielded from civil liability by \u00a7 230, revenge porn victims could use Fair Housing Council to argue these revenge porn websites are more than \u201cpassive transmitter[s] of information provided by others\u201d and are actually developers of content not entitled to protection under \u00a7 230.[100]<\/p>\n

[26]\u00a0\u00a0\u00a0\u00a0 Section 230 of the CDA likely shields revenge porn websites from civil liability, thus proving another reason civil law is an inadequate solution for victims.\u00a0 However, with the recent decision by the Ninth Circuit in Fair Housing. Council, courts may be more willing to find revenge porn websites are developers of the content on their sites and not protected by \u00a7 230.<\/p>\n

C.\u00a0 Copyright Law Is Not the Best Remedy<\/h3>\n

[27]\u00a0\u00a0\u00a0\u00a0 Some victims have opted for sending takedown notices to the websites under copyright law.[101] \u00a0If the picture posted was a \u201cselfie,\u201d then the victim owns the copyright and he or she can send takedown notices to the revenge porn websites under the DMCA.[102]\u00a0 If the website refuses to remove the image, the person can then sue the website for copyright infringement.\u00a0 Revenge porn websites are not shielded from liability for these copyright infringement claims because \u00a7 230 has an exception for copyright infringement which allows victims to hold websites liable for republishing their copyrighted photographs.[103]\u00a0 However, in order to receive statutory damages for this tort, a victim must register their copyright within ninety days of when it is published.[104] \u00a0Although a victim may not receive damages, sending DMCA takedown notices is relatively simple, and may be successful in getting an injunction against websites for posting the images online.[105]<\/p>\n

[28]\u00a0\u00a0\u00a0\u00a0 While sending these takedown notices is less costly because it does not require a lawyer, copyright law suffers from similar inadequacies as tort law.\u00a0 The reality is, copyright law does not discourage people from engaging in this activity, especially when most of the time the person posting the pictures does not end up having to pay the victim damages.\u00a0 Once images are posted to one website, they rapidly spread across the Internet.\u00a0 So, while a victim may be successful at issuing a takedown notice for one website, she may \u201cencounter the \u2018whack-a-mole\u2019 problem\u201d where \u201c[a]s soon as copyrighted content is removed from one place, it pops up in another.\u201d[106]\u00a0 Further, this legal avenue is only available to people who took the sexually explicit photograph or video of themselves.<\/p>\n

[29]\u00a0\u00a0\u00a0\u00a0 Thus, while there are currently existing laws that victims may use to sue the person who posted their picture, get an injunction, and possibly receive damages; these solutions are costly, not very effective, and none of them really get at the heart of the problem.<\/p>\n

 <\/p>\n

IV.\u00a0 Current Criminal Laws Available and the Legal Challenges to Criminalizing Revenge Porn<\/h2>\n

[30]\u00a0\u00a0\u00a0\u00a0 While some victims have been successful in winning civil suits and some operators of these websites have been charged for federal crimes such as conspiracy and child pornography, there is still a legal grey area concerning whether the act of posting and distributing revenge porn should be a crime.\u00a0 Federal and state cyberstalking laws might be an option for some revenge porn victims, but they are not ideal.\u00a0 Also, some states already have laws seemingly broad enough to reach distributors of revenge porn.\u00a0 However, many judges are reluctant to arbitrarily stretch laws past their plain language\u2014regardless of how lewd or morally reprehensible an action may be.\u00a0 This is illustrated by Massachusetts\u2019 highest court\u2019s recent holding that \u201cupskirting\u201d is legal as long as the person being photographed is not nude or partially nude.[107]\u00a0 This understandable unwillingness of judges to broaden statutes beyond their plain language further highlights the need for specific laws targeting revenge porn.\u00a0 A few states have recently introduced and passed legislation specifically aimed at criminalizing revenge porn.\u00a0 I will analyze these statutes and also discuss the legal challenges legislators face in drafting these laws.<\/p>\n

A.\u00a0 Federal and State Criminal Laws<\/h3>\n

[31]\u00a0\u00a0\u00a0\u00a0 Federal and state cyberstalking laws may seem like the best approach to going after revenge porn distributors.\u00a0 Typically, cyberstalking requires the defendant to have \u201cengaged in behavior or a pattern of conduct with the intent to alarm, abuse, or frighten the victim.\u201d[108]\u00a0 The federal telecommunications statute, 47 U.S.C. \u00a7 223, that is aimed at cyberstalking, prohibits individuals from using any telecommunications to abuse, threaten, or harass any person without revealing their identity.[109]\u00a0 Federal cyberstalking law is attractive because it prevents revenge porn websites from hiding behind \u00a7 230 of the CDA\u2019s shield of protection.\u00a0 Most states also have similar statutes prohibiting cyberstalking or cyber harassment.[110]\u00a0 Cyber harassment generally \u201cinvolves patterns of online behavior that are intended to inflict substantial emotional distress and would cause a reasonable person to suffer substantial emotional distress.\u201d[111]\u00a0 While some instances of revenge porn are included in this description, there may be substantial hurdles in proving a \u201cpattern\u201d of online behavior if the person only posted one picture and it may also be difficult to show the person posted it with the intent of causing emotional distress.[112]\u00a0 Thus, while cyberstalking laws may apply in some situations, a criminal law specifically targeting revenge porn situations is better equipped.<\/p>\n

[32]\u00a0\u00a0\u00a0\u00a0 As of 2013, the act of posting or distributing revenge porn was a crime in only two states: New Jersey and California.[113]\u00a0 Also, Alaska and Texas currently have laws broad enough to apply to distribution of revenge porn; however, an appeals court declared the Texas law unconstitutional.[114]\u00a0 Fortunately, this legal issue has quickly captured much attention over the past year. In 2014, twenty-seven states, the District of Columbia, and Puerto Rico had legislation addressing revenge porn either introduced or pending, and twelve states enacted laws criminalizing the act of posting revenge porn: Arizona, Colorado, Delaware, Georgia, Hawaii, Idaho, Maryland, New York, Pennsylvania, Utah, Virginia, and Wisconsin.[115]<\/p>\n

[33]\u00a0\u00a0\u00a0\u00a0 New Jersey\u2019s Title 2C: 14-9 is an invasion of privacy law which was originally directed at people who secretly photograph or videotape another person while they are naked or engaged in sexual activity without their consent.[116]\u00a0 New Jersey\u2019s law was intended to cover \u201cvideo voyeurs\u201d and was used to prosecute Rutgers University student Dharun Ravi in 2010.[117]\u00a0 Ravi was found guilty under Title 2C: 14-9 after he secretly set up a webcam to spy on his roommate, Tyler Clementi and then live streamed the video.[118]\u00a0 Clementi, who was only eighteen years old, committed suicide after finding out the video had been live streamed.[119]\u00a0 The New Jersey statute reads:<\/p>\n

An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure.[120]<\/p>\n

Although the law was not drafted with the criminalization of revenge porn in mind, it was written broad enough so that it does apply to most revenge porn situations.<\/p>\n

[34]\u00a0\u00a0\u00a0\u00a0 In the fall of 2013, the California legislature passed SB 255, a revenge porn bill introduced by Senator Cannella.[121]\u00a0 Governor Jerry Brown signed the bill into law on October 1, 2013 and it went into effect immediately.[122]\u00a0 The law makes posting revenge porn a misdemeanor punishable by up to six months in jail and a $1,000 fine.[123]\u00a0 It specifically provides that:<\/p>\n

Except as provided in subdivision (l), every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: . . . Any person who photographs or records by any means the image of the intimate body part of parts of another identifiable person, under circumstances where the parties agree or understand the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.[124]<\/p>\n

As written, California\u2019s law does not include pictures the victim took of him or herself, often called a \u201cselfie.\u201d[125]\u00a0 California\u2019s law contains other concerning loopholes, as well.\u00a0 For instance, it does not cover anyone who might redistribute the photograph or recording after it has already been taken by someone else because it covers only the person who makes the photograph or recording.[126]\u00a0 So, the law does not penalize people who steal explicit pictures from someone else\u2019s phones or hackers who obtain these photos by hacking into the victim\u2019s computer or phone.[127]\u00a0 These situations are not out of the ordinary; when it comes to legal possibilities, California\u2019s law likely will leave many revenge porn victims in the same helpless situation they were in before the bill was passed.\u00a0 However, Senator Canella introduced a new bill, SB 1255, which broadened the law to include selfies as well.[128]<\/p>\n

[35]\u00a0\u00a0\u00a0\u00a0 Idaho also passed House Bill 563 which amends provisions of Idaho\u2019s existing law relating to the crime of video voyeurism to include the act of sharing pictures or videos of an intimate or private nature shared without consent for purposes other than sexual gratification, including revenge, extortion, or humiliation.[129]\u00a0 Idaho\u2019s video voyeurism law now states:<\/p>\n

A person is guilty of video voyeurism when . . . [h]e either intentionally or with reckless disregard disseminates, publishes or sells or conspires to disseminate, publish or sell any image or images of the intimate areas of another person or persons without the consent of such other person or persons and he knows or reasonably should have known that one (1) or both parties agreed or understood that the images should remain private.[130]<\/p>\n

House Bill 563 was reported signed by the Governor on March 19, 2014 and went into effect on July 1, 2014.[131]<\/p>\n

[36]\u00a0\u00a0\u00a0\u00a0 Both Alaska and Texas have existing laws written broad enough to cover revenge porn situations.\u00a0 Alaska\u2019s existing cyber-harassment law is written broad enough to cover revenge porn situations and was used to charge Joshua P. Hoehne with second-degree harassment for downloading pictures from a former roommate\u2019s computer without permission and creating fake social media accounts for a woman and her sister containing nude pictures of them and sexually explicit captions.[132]\u00a0 Texas\u2019s improper photography or visual recording law may be broad enough to include distributors of revenge porn; however, the Fourth Court of Appeals in San Antonia, Texas held the statute was unconstitutional in an opinion filed August 30, 2013.[133]<\/p>\n

[37]\u00a0\u00a0\u00a0\u00a0 While fourteen states and arguably Alaska have laws currently criminalizing revenge porn, twenty-seven states, the District of Columbia, and Puerto Rico have considered similar legislation over the past few years.[134]\u00a0 In 2013, Florida, the home state of Holly Jacobs,[135] tried and failed to pass a revenge porn law.[136]\u00a0 Florida Representative Tom Goodson sponsored House Bill 787, \u201cComputer or Electronic Device Harassment,\u201d which would have made it illegal to post nude pictures of someone online and tag them with their personal information without their consent.[137]\u00a0 The wording of this bill would only make it illegal to post the nude picture if the person posting it also tagged the victim.\u00a0 Thus, the bill did not criminalize the act of posting the nude picture, generally.\u00a0 However, in 2014, Florida Senator David Simmons introduced another revenge porn bill, Senate Bill 532, which does not include this tagging requirement.[138]\u00a0 The bill unanimously passed the Senate, but unfortunately did not pass the House and died in committee on May 2, 2014.[139]<\/p>\n

[38]\u00a0\u00a0\u00a0\u00a0 In Virginia, Delegate Robert P. Bell introduced House Bill 326 which, in relevant part, provides:<\/p>\n

Any person who, with the intent to coerce, harass, or intimidate, maliciously disseminates or sells any videographic or still image created by any means whatsoever that depicts another person who is totally nude, or in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast, where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image is guilty of a Class 1 misdemeanor.\u00a0 However, if a person uses services of an Internet service provider, an electronic mail service provider, or any other information service, system, or access software provider that provides or enables computer access by multiple users to a computer server in committing acts prohibited under this section, such provider shall not be held responsible for violating this section for content provided by another person.[140]<\/p>\n

House Bill 326 passed both the Senate and the House, was signed into law by Governor Terry McAuliffe on March 31, 2014, and became effective on July 1, 2014.[141]\u00a0 Other states that have proposed similar legislation in 2014 include Alabama, Arizona, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Kentucky, Maryland, Massachusetts, Missouri, New Mexico, New York, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin.[142]<\/p>\n

B.\u00a0 Challenges for Getting Criminal Revenge Porn Laws Passed<\/h3>\n

[39]\u00a0\u00a0\u00a0\u00a0 Revenge porn advocates and legislators face many challenges in getting criminal revenge porn laws passed.\u00a0 First, it is important these laws are not written too broadly, so they do not violate individuals\u2019 right to free speech under the First Amendment.\u00a0 On the other hand, it is difficult to write a law broad enough to encompass the majority of revenge porn victims that does not impose unnecessary hurdles regarding the burden of proof.<\/p>\n

[40]\u00a0\u00a0\u00a0\u00a0 Many of the state laws and introduced legislation criminalizing revenge porn have been criticized for being written too broadly and abridging free speech in violation of the First Amendment.[143]\u00a0 There was some opposition to California\u2019s anti-revenge porn law by the Electronic Frontier Foundation (\u201cEFF\u201d) and the American Civil Liberties Union (\u201cACLU\u201d) when the law was in its early stages.[144]\u00a0 As an attorney for the EFF stated, \u201c[f]requently, almost inevitably, statutes that try to do this type of thing overreach . . . [t]he concern is that they\u2019re going to shrink the universe of speech that\u2019s available online.\u201d[145]\u00a0 However, Mary Anne Franks argues that a carefully crafted revenge porn statute with certain exceptions for lawful activity does not offend the First Amendment.[146]\u00a0 Further, she notes that laws criminalizing cyber-stalking have not been found to violate the First Amendment, so a well-written law criminalizing revenge porn should not cause problems either.[147]<\/p>\n

[41]\u00a0\u00a0\u00a0\u00a0 Certain types of speech are not protected by the First Amendment and some speech can be regulated without violating the Constitution because it has the tendency to bring about serious harm which outweighs the right to freedom of speech.[148]\u00a0 The constitutionality of revenge porn laws might be a moot point as some may argue that revenge porn is obscene and should not even qualify as protected speech within the scope of the First Amendment.\u00a0 In Miller v. California, the guiding case on obscenity, the Court laid out the following test for determining whether material is obscene:<\/p>\n

(a) whether \u201cthe average person, applying contemporary community standards\u201d would find that the work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[149]<\/p>\n

The application of this test in cases involving modern Internet pornography has proven difficult and controversial because it is unclear how courts should identify contemporary community standards.[150]\u00a0 \u201cCritics debate whether the courts should apply a national standard, a statewide standard, a standard based on smaller community units, an \u2018average adult\u2019 standard, or in Internet cases, a cyber-community standard.\u201d[151] \u00a0Regardless of the difficulty in applying the Miller test in the age of Internet pornography, revenge porn could arguably qualify as obscenity.\u00a0 Distributing sexually explicit pictures or videos of a person without their consent is \u201cpatently offensive\u201d and many would argue revenge porn \u201clacks serious literary, artistic, political, or scientific value.\u201d[152]\u00a0 Thus, revenge porn may be considered obscene unprotected speech.<\/p>\n

[42]\u00a0\u00a0\u00a0\u00a0 Even if revenge porn is not categorized as obscene, it may be considered \u201cindecent\u201d speech that is subject to a slightly lower scrutiny when being analyzed for constitutionality.[153]\u00a0 In FCC v. Pacifica, the Court held that the content of Pacifica\u2019s radio broadcast was \u201c\u2018vulgar,\u2019 \u2018offensive,\u2019 and \u2018shocking\u2019\u201d and noted that \u201ccontent of that character is not entitled to absolute constitutional protection under all circumstances.\u201d[154]\u00a0 The Court held the FCC was able to regulate the broadcast for largely two reasons: (1) the indecent material was invading individuals in the privacy of their own home \u201cwhere the individual\u2019s right to be left alone plainly outweighs the First Amendment rights of an intruder\u201d; and (2) the broadcasting was easily accessible to children.[155]\u00a0 A similar argument may be made for revenge porn, as these websites are easily accessible to children.\u00a0 Although it might be difficult to argue these websites are confronting individuals in the privacy of their own home, they are seriously invading the privacy of those whose pictures are being distributed without their consent.<\/p>\n

[43]\u00a0\u00a0\u00a0\u00a0 On the other end of the spectrum, some scholars have criticized California\u2019s law and the proposed law in Florida for being too narrow.\u00a0 As noted above, in its current form, California\u2019s law does not cover \u201cselfies\u201d and there must be proof the person distributed the picture with the intent to cause serious emotional distress.[156]\u00a0 Many argue the law takes it too far by requiring the prosecution to prove the defendant intended to inflict serious emotional distress.\u00a0 Moreover, as previously discussed above, the California law does not reach third parties who did not take the explicit photograph or video themselves, but were still the ones to distribute it on the Internet.[157]\u00a0 Further, Florida\u2019s proposed legislation would have continued to permit people to post nude photographs without the depicted person\u2019s consent as long as she was not tagged with personal identifying information.[158]\u00a0 It has proven difficult for many states to strike the right balance between proper protection for the victims of revenge porn and a law that does not improperly restrict free speech.<\/p>\n

 <\/p>\n

V.\u00a0 A Federal Law Criminalizing Revenge Porn is Necessary<\/h2>\n

[44]\u00a0\u00a0\u00a0\u00a0 The best way to attack revenge porn and prevent people from posting and distributing revenge porn is with a federal law criminalizing the act.[159]\u00a0 Clearly, the existing civil remedies and criminal laws are inefficient.\u00a0 Although it seems many states will continue to propose legislation criminalizing this activity, the most effectual way to put a stop to revenge porn would be for Congress to pass a uniform prohibition.\u00a0 A federal criminal statute would ensure that victims in states that fail to pass such legislation are protected.[160]\u00a0 Moreover, many revenge porn victims have trouble convincing law enforcement to help them, and a federal criminal law would make sure authorities understand this behavior is against the law and deserves attention.[161]\u00a0 Additionally, a federal statute criminalizing revenge porn would prevent revenge porn websites from hiding behind the shield of liability provided by \u00a7 230 of the CDA.<\/p>\n

[45]\u00a0\u00a0\u00a0\u00a0 Moreover, like most Internet activities, revenge porn often crosses jurisdictional boundaries and involves interstate or international communications.[162]\u00a0 As Kevin V. Ryan and Mark L. Krotoski state, \u201cThe Internet provides the means to communicate with or access computers around the world in real-time, twenty-four hours a day seven days a week.\u00a0 Taking advantage of the global reach of the Internet, perpetrators may be many time zones away in another jurisdiction or country.\u201d[163]\u00a0 Thus, although state criminal laws may help in addressing revenge porn, because this activity often involves interstate and international communications and crosses jurisdictional boundaries, a federal law is necessary and would be a more effective solution.<\/p>\n

[46]\u00a0\u00a0\u00a0\u00a0 As discussed above, states have taken different approaches to the criminalization of revenge porn; some passing laws that are too narrow and others passing laws that are too broad.\u00a0 A carefully crafted, uniform federal law should remedy this issue.\u00a0 First, the law would need to be broad enough to cover both explicit pictures taken by another person and explicit \u201cselfies.\u201d\u00a0 This federal law should not make the same mistake as California in leaving out pictures a victim took of him or herself.\u00a0 Many revenge porn victims did take the pictures or videos of themselves, but did not consent to having them posted on the Internet for the world to access.\u00a0 Thus, this federal law should prohibit a person from knowingly posting and distributing an explicit photograph or video on the Internet without the depicted person\u2019s consent.\u00a0 The intent requirement does not need to include intent to cause serious emotional distress, as long as the language clearly states the distributor knew or had reason to know the explicit images were meant to remain private.\u00a0 There is no need for the federal statute to include proof of a pattern of harassing behavior.\u00a0 However, in order to circumvent constitutional issues, the law likely should include a requirement of proof the victim suffered some emotional harm.<\/p>\n

[47]\u00a0\u00a0\u00a0\u00a0 In March 2014, California Representative Jackie Speier announced she was preparing to introduce federal legislation criminalizing the distribution of revenge porn.[164]\u00a0 Franks, who is helping Speier draft the legislation, has stated that the bill would look similar to this model statute:<\/p>\n

Whoever knowingly discloses through the mails, or using any means of facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including a computer, an image of another, identifiable person whose intimate parts are exposed or who is engaged in a sexual at, when the actor knows or should have known that the depicted person has not consented to such disclosure, shall be fined under this title or imprisoned not more than two years, or both.[165]<\/p>\n

Representative Speier\u2019s announcement of her plan to introduce this legislation is a step in the right direction.<\/p>\n

[48]\u00a0\u00a0\u00a0\u00a0 A federal criminal ban on the distribution of revenge porn likely would serve as a deterrent and discourage people from posting these pictures in the first place.\u00a0 If a person knows he could potentially face jail time or a heavy fine, he likely would not be as quick to engage in such an activity.\u00a0 Further, being indicted on federal criminal charges rather than being sued by one individual likely will carry more weight and be taken more seriously by people engaging in this vindictive behavior.\u00a0 Also, a federal law criminalizing this activity means victims are represented by the government.\u00a0 Thus, victims would not have to pay to litigate these lawsuits and would not have to face as much publicity as they would when bringing a civil suit. More importantly, a federal criminal ban on revenge porn would trump \u00a7 230 of the CDA, allowing victims to go after the big fish, the revenge porn websites.\u00a0 Thus, such a law would also discourage people from operating revenge porn websites, period; thus, truly getting at the heart of the problem.<\/p>\n

 <\/p>\n

VI.\u00a0 Conclusion<\/h2>\n

[49]\u00a0\u00a0\u00a0\u00a0 As technology and pornography continue to mature and push the limits, both consistently present judges, legislators, and legal advocates with difficult legal questions.\u00a0 The rapid growth of technology and pornography\u2019s recent creation, revenge porn, has brought detrimental effects for many and highlighted a great need for legal action.\u00a0 Although many states have begun to recognize the seriousness of this issue, and even though there are some existing civil laws that potentially address revenge porn, the most effective way to stop websites and users from posting revenge porn is for Congress to enact a federal criminal law.\u00a0 A carefully crafted federal law would protect victims, deter violators, and allow victims to go after the actual revenge porn websites themselves, without offending the First Amendment.<\/p>\n

 <\/p>\n

\n

[1] See Jonathan Coopersmith, Pornography, Technology and Progress, 4 ICON 94 (1998), available at http:\/\/berlin.robinperrey.com\/imgpo\/pornography-technology-and-progress.pdf.<\/p>\n

[2] See id.<\/p>\n

[3] See Christopher Bonanos, Before Sexting, There Was Polaroid, Atlantic (Oct. 1, 2012, 12:38\u00a0PM), http:\/\/www.theatlantic.com\/technology\/archive\/2012\/10\/before-sexting-there-was-polaroid\/263082\/<\/p>\n

[4] Coopersmith, supra note 1, at 102 (\u201cFilm did not die\u20147852 new pornographic films appeared in 1996 compared with 471 Hollywood films\u2014but consumption had moved from adult theatres and sex stores to the more private environments provided by cable TV and the VCR.\u201d).<\/p>\n

[5] Peter Johnson, Pornography Drives Technology: Why Not to Censor the Internet, 49 Fed. Comm. L.J. 217, 222 (1996) (emphasis added).<\/p>\n

[6] Coopersmith, supra note 1, at 104.<\/p>\n

[7] Id. \u00a0\u201cThe Internet offers nearly free access to pornography uninhibited by previous barriers of time and space.\u201d\u00a0 Id. at 110.<\/p>\n

[8] Id. at 110-11.<\/p>\n

[9] See Katie Gant, Note, Crying Over the Cache: Why Technology Has Compromised the Uniform Application of Child Pornography Laws, 81 Fordham L. Rev. 319, 326 (2012) (noting that \u201c[w]ith the advent of [I]nternet technology, child pornography became a new monster\u201d); Nicole A. Poltash, Note, Snapchat and Sexting: A Snapshot of Baring Your Bare Essentials, 19 Rich. J.L. & Tech. 14, \u00b6 5 (2013), http:\/\/jolt.richmond.edu\/v19i4\/article14.pdf.<\/p>\n

[10] See Coopersmith, supra note 1, at 106 (\u201cIn an example of the true democratisation of technology, the development of the Polaroid instant camera and the camcorder allowed people to produce their own pornography free from anyone else seeing their work.\u201d).<\/p>\n

[11] More on Sexting and Texting from SIA 3, UptoDate (Feb. 5, 2013), http:\/\/blog.match.com\/2013\/02\/05\/more-on-sexting-and-texting-from-sia-3\/.<\/p>\n

[12] See Michelle Dean, The Case for Making Revenge Porn a Federal Crime, Gawker (Mar. 27, 2014, 2:45 PM), http:\/\/gawker.com\/the-case-for-making-revenge-porn-a-federal-crime-1552861507; State \u2018Revenge Porn\u2019 Legislation, Nat\u2019l Conf. St. Legis., http:\/\/www.ncsl.org\/research\/telecommunications-and-information-technology\/state-revenge-porn-legislation.aspx (last visited Oct. 15, 2014).\u00a0 Alaska and Texas also have statutes already on the books that may be broad enough to cover revenge porn situations.\u00a0 See Dean, supra.\u00a0 This will be discussed further below.<\/p>\n

[13] Id. (noting that bills had been introduced or are pending in at least twenty seven states, the District of Columbia, and Puerto Rico in 2014).<\/p>\n

[14] See Doe v. Hofstetter, No. 11-CV-02209-DME-MJW, 2012 U.S. Dist. LEXIS 82320 (D. Colo. June 13, 2012) (holding that defendant was guilty of intentional infliction of emotional distress, defamation, and public disclosure of private fact after he posted ex-girlfriend\u2019s nude photographs on twenty-three adult websites with her contact information); Lorelei Laird, Victims Are Taking on \u2018Revenge Porn\u2019 Websites for Posting Photos They Didn\u2019t Consent to, ABA J. (Nov. 1, 2013, 4:30 AM), http:\/\/www.abajournal.com\/mobile\/mag_article\/victims_are_taking_on_revenge_porn_websites_for_posting_photos_they_didnt_c\/ (noting that victims of revenge porn own the copyright of their photos were self-portraits and can send takedown notices under the Digital Millennium Copyright Act).<\/p>\n

[15] See, e.g., Mary Anne Franks, Sexual Harassment 2.0, 71 Md. L. Rev. 655, 687-88 (2012); Danielle Citron, Revenge Porn and the Uphill Battle to Pierce Section 230 Immunity (Part II), Concurring Opinions (Jan. 25, 2013), http:\/\/www.concurringopinions.com\/archives\/2013\/01\/revenge-porn-and-the-uphill-battle-to-pierce-section-230-immunity-part-ii.html.<\/p>\n

[16] See, e.g., Revenge Porn, Urban Dictionary, http:\/\/www.urbandictionary.com\/define.php?term=revenge%20porn (last visited June. 8, 2014).<\/p>\n

[17] Alexa Tsoulis-Reay, A Brief History of Revenge Porn, N.Y. Mag. (July 21, 2013), http:\/\/nymag.com\/news\/features\/sex\/revenge-porn-2013-7\/.<\/p>\n

[18] Id.<\/p>\n

[19] Id.<\/p>\n

[20] Jonathan Barrett & Luke Strongman, The Internet, the Law, and Privacy in New Zealand: Dignity with Liberty?, 6 Int\u2019l J. of Comm. 127, 136 (2012).<\/p>\n

[21] See Tsoulis-Reay, supra note 17.<\/p>\n

[22] See, e.g., Laird, supra note 14.<\/p>\n

[23] Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 350-51 (2014) (citation omitted).<\/p>\n

[24] Is Anyone Up?, Wikipedia, http:\/\/en.wikipedia.org\/wiki\/Is_Anyone_Up%3F (last visited June 8, 2014).<\/p>\n

[25] Matt Markovich, Revenge Porn Websites Taking Advantage of Weak Privacy Laws, KOMO News (Nov. 21, 2013, 11:53PM), http:\/\/www.komonews.com\/news\/local\/Privacy-Laws-Weak-at-Protecting-Nude-Photos-on-Revenge-Porn-Websites-232935541.html.<\/p>\n

[26] Laird, supra note 14 (noting that even revenge porn sites \u201chave been accused of hacking victims\u2019 computers or fishing for photos with false personal ads\u201d).<\/p>\n

[27] Communications Decency Act of 1996, 47 U.S.C. \u00a7\u00a7 230, 560, 561 (1996).<\/p>\n

[28] Cheryl B. Preston, What Ifs and Other Alternative Intellectual Property and Cyberlaw Story: The Internet and Pornography: What If Congress and the Supreme Court Had Been Comprised of Techies in 1995-1997?, 2008 Mich. St. L. Rev. 61, 62 (2008).<\/p>\n

[29] Reno v. ACLU (Reno I), 521 U.S. 844 (1997) (holding that \u00a7\u00a7 223(a) and 223(d) were overbroad and abridged the freedom of speech protected by the First Amendment).<\/p>\n

[30] See Preston, supra note 28, at 64.<\/p>\n

[31] See id. at 74.<\/p>\n

[32] Jonathan Coopersmith, Does Your Mother Know What You Really Do?\u00a0 The Changing Nature and Image of Computer-Based Pornography, 22 Hist. & Tech. 1, 2 (2006).<\/p>\n

[33] Shannon Creasy, Note and Comment, Defending Against a Charge of Obscenity in the Internet Age: How Google Searches Can Illuminate Miller\u2019s \u201cContemporary Community Standards\u201d, 26 Ga. St. U.L. Rev. 1029, 1031 (2010).<\/p>\n

[34] See id.<\/p>\n

[35] See Preston, supra note 28, at 83 (reporting that in one month during 2005, over seventy-one million people\u2014forty-two percent of the Internet audience\u2014viewed Internet pornography).<\/p>\n

[36] See Preston, supra note 28, at 85.<\/p>\n

[37] See Preston, supra note 28, at 85.<\/p>\n

[38] See Alex Saltarin, US Leads Smartphone Porn-watching Countries List, Tech Times (Dec.24, 2013, 11:21 AM), http:\/\/www.techtimes.com\/articles\/2229\/20131224\/us-leads-smartphone-porn-watching-countries-list.htm.<\/p>\n

[39] See id.<\/p>\n

[40] See Lauren Effron, The Appeal of Amateur Porn, ABC News (Oct. 14, 2011, 3:37 PM), http:\/\/abcnews.go.com\/blogs\/health\/2011\/10\/14\/the-appeal-of-amateur-porn\/.<\/p>\n

[41] Id.<\/p>\n

[42] Obviously, there are other factors that aided in the rise of revenge porn such as the actual spitefulness of the jilted ex-lovers that decide to post the images, but this comment will not go into this aspect of the trend.<\/p>\n

[43] See Patt Morrison, \u2018Revenge Porn\u2019 May Soon Be a Crime in California, L.A. Times (Aug. 26, 2013, 11:46 AM), http:\/\/www.latimes.com\/opinion\/opinion-la\/la-ol-revenge-porn-should-it-be-a-crime-20130826,0,2875247.story.<\/p>\n

[44] See id.<\/p>\n

[45] See id.<\/p>\n

[46] Natalie Webb, Revenge Porn by the Numbers, End Revenge Porn (Jan. 3, 2014),http:\/\/www.endrevengeporn.org\/revenge-porn-infographic\/.<\/p>\n

[47] See Citron & Franks, supra note 23, at 351.<\/p>\n

[48] See id..<\/p>\n

[49] See id..<\/p>\n

[50] Mary Anne Franks, Criminalizing Revenge Porn: A Quick Guide, End Revenge Porn, http:\/\/www.endrevengeporn.org\/guide-to-legislation\/ (last visited Apr. 26, 2014).<\/p>\n

[51] See Citron & Franks, supra note 23, at 352.<\/p>\n

[52] See, e.g., Jessica Roy, The Battle Over Revenge Porn: Can Hunter Moore, the Web\u2019s Vilest Entrepreneur, Be Stopped?, BetaBeat (Dec. 4, 2012, 7:46 PM), http:\/\/betabeat.com\/2012\/12\/the-battle-over-revenge-porn-can-hunter-moore-the-webs-vilest-entrepreneur-be-stopped\/.<\/p>\n

[53] See id.<\/p>\n

[54] See id.<\/p>\n

[55] See id.<\/p>\n

[56] See id.<\/p>\n

[57] See Memphis Barker, \u201cRevenge Porn\u201d Is No Longer a Niche Activity Which Victimises Only Celebrities\u2014The Law Must Intervene, Indep. (May 19, 2013), http:\/\/www.independent.co.uk\/voices\/comment\/revenge-porn-is-no-longer-a-niche-activity-which-victimises-only-celebrities–the-law-must-intervene-8622574.html.<\/p>\n

[58] Kashmir Hill, Revenge Porn with a Facebook Twist, Forbes (July 6, 2011, 4:54 PM), http:\/\/www.forbes.com\/sites\/kashmirhill\/2011\/07\/06\/revenge-porn-with-a-facebook-twist\/.<\/p>\n

[59] See id.<\/p>\n

[60] See Adrian Chen, Internet\u2019s Sleaziest Pornographer Calls It Quits: \u2018I\u2019m Done with Looking at Little Kids Naked All Day\u2019, Gawker (Apr. 19, 2012, 4:50 PM), http:\/\/gawker.com\/5903486\/internets-sleaziest-pornographer-calls-it-quits-im-done-with-looking-at-little-kids-naked-all-day\/all.\u00a0 In a phone interview, Moore talked about how the influx of child pornography submissions became too much with which for him to deal.\u00a0 See also Drew Guarini, Hunter Moore, Is Anyone Up Founder, Says New Website Will Be \u2018Scariest on the Internet\u2019, Huffington Post (Aug. 24, 2012, 12:26 PM), http:\/\/www.huffingtonpost.com\/2012\/08\/23\/hated-internet-star-hunte_n_1826061.html.<\/p>\n

[61] See Roy, supra note 52.<\/p>\n

[62] See Abby Rogers, The Guy Behind Two \u201cRevenge Porn\u201d Sites Says the Government Protects His Work, Bus. Insider (Nov. 29, 2012, 4:43 PM), http:\/\/www.businessinsider.com\/isanyoneupcom-naked-pictures-are-back-2012-11.<\/p>\n

[63] See Roy, supra note 52.<\/p>\n

[64] See Rogers, supra note 62.<\/p>\n

[65] See Jessica Roy, Revenge-Porn King Hunter Moore Indicted on Federal Charges, Time (Jan. 23, 2014), http:\/\/time.com\/1703\/revenge-porn-king-hunter-moore-indicted-by-fbi\/.<\/p>\n

[66] See id.<\/p>\n

[67] See id.<\/p>\n

[68] See Kashmir Hill, How Revenge Porn King Hunter Moore Was Taken Down, Forbes (Jan. 24, 2014, 11:17 AM), http:\/\/www.forbes.com\/sites\/kashmirhill\/2014\/01\/24\/how-revenge-porn-king-hunter-moore-was-taken-down\/.<\/p>\n

[69] See The Associated Press, California: Man Is Charged in \u2018Revenge Porn\u2019 Case, N.Y. Times (Dec. 10, 2013), http:\/\/www.nytimes.com\/2013\/12\/11\/us\/california-man-is-charged-in-revenge-porn-case.html?_r=0.<\/p>\n

[70] See id.; \u201cRevenge Porn\u201d Website Gets Calif. Man Charged with Extortion, CBS News (Dec. 11, 2013, 4:49 PM), http:\/\/www.cbsnews.com\/news\/calif-man-charged-with-extortion-through-revenge-porn-website\/.<\/p>\n

[71] See Don Thompson, Court Date Set for Kevin Bollaert in Revenge Porn Website Case, Huffington Post (Dec. 12, 2013, 2:15 AM), http:\/\/www.huffingtonpost.com\/2013\/12\/12\/kevin-bollaert-revenge-porn_n_4432097.html.<\/p>\n

[72] See id.<\/p>\n

[73] Joe Silver, \u201cRevenge Porn\u201d Site Creators Hit With $385,000 Judgment, Ars Technica (Mar.19, 2014, 1:48 PM), http:\/\/arstechnica.com\/tech-policy\/2014\/03\/revenge-porn-site-creators-hit-with-385000-judgment\/.<\/p>\n

[74] Citron and Franks also give a detailed analysis of the insufficiency of civil actions in addressing revenge porn.\u00a0 See Citron & Franks, supra note 23, at 357\u201361.<\/p>\n

[75] See Sarah Jeong, Revenge Porn Is Bad.\u00a0 Criminalizing It Is Worse, Wired (Oct. 28, 2013, 9:30 AM), http:\/\/www.wired.com\/2013\/10\/why-criminalizing-revenge-porn-is-a-bad-idea\/; Laird, supra note 14.<\/p>\n

[76] See Jeong, supra note 75.<\/p>\n

[77] See 47 U.S.C. \u00a7 230 (2006); Dean, supra note 12.<\/p>\n

[78] See Digital Millennium Copyright Act, 17 U.S.C. \u00a7 512 (2012).<\/p>\n

[79] See Doe v. Hofstetter, No. 11-CV-02209-DME-MJW, 2012 U.S. Dist. LEXIS 82320 (D. Colo. June 13, 2012).<\/p>\n

[80] See, e.g., Daniel Zharkovsky, \u201cIf Man Will Strike, Strike Through the Mask\u201d: Striking Through Section 230 Defenses Using the Tort of Intentional Infliction of Emotional Distress, 44 Colum. J. L. & Soc. Probs. 193, 227 (2010).<\/p>\n

[81] See id. at 228.<\/p>\n

[82] See Nancy S. Kim, Web Site Proprietorship and Online Harassment, 2009 Utah L. Rev. 993, 1006 (2009).<\/p>\n

[83] See id. at 1007 (citing Restatement (Second) of Torts \u00a7\u00a7 558\u201359 (1977)).<\/p>\n

[84] See id. at 1008-09.<\/p>\n

[85] See id. at 1010.<\/p>\n

[86] See Citron & Franks, supra note 23, at 358.<\/p>\n

[87] See Kim, supra note 82, at 1008.\u00a0 \u201cOn the Internet, however, widespread distribution is available to those without substantial financial resources.\u00a0 Consequently, even where a plaintiff prevails in a civil action against an online harasser, the odds are high that the plaintiff will not be able to recover significant damages.\u201d\u00a0 Id.<\/p>\n

[88] See Derek E. Bambauer, Exposed 98 Minn. L. Rev. (forthcoming 2014) (manuscript at 4-5) (on file with Univ. of Ariz. James E. Rogers College of Law, Discussion Paper No. 13-39), available at http:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=2315583.<\/p>\n

[89] See Kim, supra note 82, at 1010.<\/p>\n

[90] See 47 U.S.C. \u00a7230(c)(1) (2006).<\/p>\n

[91] See Zharkovsky, supra note 80, at 198. \u201cOne such problem concerned whether a proprietor of an online message board could be liable for defamatory statements posted on the board, even though the statements were made by an independent third party.\u201d\u00a0 Id. at 197.<\/p>\n

[92] See id. at 198-99.<\/p>\n

[93] 47 U.S.C. \u00a7 230(c)(1).<\/p>\n

[94] 47 U.S.C. \u00a7 230(c)(2)(A).<\/p>\n

[95] 47 U.S.C. \u00a7 230(e)(1)-(3) (emphasis added).<\/p>\n

[96] See Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1174-75 (9th Cir. 2008) (en banc).<\/p>\n

[97] See id. at 1162.<\/p>\n

[98] See id. at 1164.<\/p>\n

[99] See id. at 1166.<\/p>\n

[100] See id.<\/p>\n

[101] See Laird, supra note 14.<\/p>\n

[102] See 17 U.S.C. \u00a7 512; Laird, supra note 14.<\/p>\n

[103] 47 U.S.C. \u00a7 230(e)(2).<\/p>\n

[104] See Laird, supra note 14.<\/p>\n

[105] See id.<\/p>\n

[106] Amanda Levendowski, Our Best Weapon Against Revenge Porn: Copyright Law?, Atlantic (Feb. 4, 2014, 1:03PM), http:\/\/www.theatlantic.com\/technology\/archive\/2014\/02\/our-best-weapon-against-revenge-porn-copyright-law\/283564\/.<\/p>\n

[107] See Haimy Assefa, Massachusetts Court Says \u2018Upskirt\u2019 Photos Are Legal, CNN (Mar. 6, 2014, 7:33 AM), http:\/\/www.cnn.com\/2014\/03\/05\/us\/massachusetts-upskirt-photography\/.\u00a0 The Massachusetts court held it was legal to secretly photographs underneath a person\u2019s clothing when the person is not nude or partially nude.\u00a0 See id.\u00a0 The court ruled,<\/p>\n

In sum, we interpret the phrase, \u201ca person who is . . . partially nude,\u201d in the same way that the defendant does, namely, to mean a person who is partially clothed but who has one or more of the private parts of body exposed in plain view at the time that the putative defendant secretly photographs her.<\/p>\n

Commonwealth v. Robertson, 5 N.E.3d 522, 528 (Mass. 2014).<\/p>\n

[108] See Kim, supra note 81, at 1008.<\/p>\n

[109] See 47 U.S.C. \u00a7 223 (2006).<\/p>\n

[110] State Cyberstalking and Cyberharassment Laws, Nat\u2019l Conf. St. Legis. (Dec. 5, 2013), http:\/\/www.ncsl.org\/research\/telecommunications-and-information-technology\/cyberstalking-and-cyberharassment-laws.aspx.<\/p>\n

[111] David Gray et. al., Fighting Cybercrime After United States v. Jones, 103 J. Crim. L. & Criminology 745, 748 (2013).<\/p>\n

[112] See Franks, supra note 50.<\/p>\n

[113] State \u2018Revenge Porn\u2019 Legislation, supra note 12.<\/p>\n

[114] See id.; Dean, supra note 12.<\/p>\n

[115] See generally State \u2018Revenge Porn\u2019 Legislation, supra note 12.<\/p>\n

[116] N.J. Stat. Ann. \u00a7 2C:14-9 (West 2014).<\/p>\n

[117] See Suzanne Choney, \u2018Revenge Porn\u2019 Law in California Could Pave Way for Rest of Nation, NBC News (Sept. 3, 2013, 4:34 PM), http:\/\/www.nbcnews.com\/tech\/internet\/revenge-porn-law-california-could-pave-way-rest-nation-f8C11022538.<\/p>\n

[118] See id.<\/p>\n

[119] See id.<\/p>\n

[120] N.J. Stat. Ann. \u00a7 2C:14-9(c).<\/p>\n

[121] S. 255, 2013-2014 Reg. Sess. (Cal. 2013) (enacted as Cal. Penal Code \u00a7 647(j)(4)(A)).<\/p>\n

[122] See Jerry Brown Signs Anti-Revenge Porn Bill, Huffington Post (Oct. 2, 2013, 10:18 AM), http:\/\/www.huffingtonpost.com\/2013\/10\/02\/jerry-brown-revenge-porn_n_4030175.html.<\/p>\n

[123] See id.<\/p>\n

[124] \u00a7 647(j)(4)(A).<\/p>\n

[125] See id.<\/p>\n

[126] See \u00a7 647(j)(4)(A); Eric Goldman, California\u2019s New Law Shows It\u2019s Not Easy To Regulate Revenge Porn, Forbes (Oct. 8, 2013, 12:03 PM), http:\/\/www.forbes.com\/sites\/ericgoldman\/2013\/10\/08\/californias-new-law-shows-its-not-easy-to-regulate-revenge-porn\/.<\/p>\n

[127] See \u00a7 647(j)(4)(A); Goldman supra note 125.<\/p>\n

[128] See S. 1255, 2013-2014 Reg. Sess. (Cal. 2014).<\/p>\n

[129] H.R. 563, 2014 2d Reg. Sess. (Id. 2014), available at http:\/\/www.legislature.idaho.gov\/legislation\/2014\/H0563.htm.<\/p>\n

[130] Id.<\/p>\n

[131] See id.<\/p>\n

[132] Alaska Stat. \u00a7 11.61.120 (2013); Jerzy Shedlock, Anchorage Man Charged with Harassment After Creating Fake Facebook Accounts, Alaska Dispatch (Jan. 4, 2014), http:\/\/www.alaskadispatch.com\/article\/20140104\/anchorage-man-charged-harassment-after-creating-fake-facebook-accounts.<\/p>\n

[133] Tex. Penal Code Ann. \u00a7 21.15(b)(1) (West 2011); ex parte Thompson, 414 S.W.3d 872, 874 (Tex. App. 2013)\u00a0 (holding section 21.15(b)(1) of the Texas Penal Code unconstitutional for restricting protected speech by regulating an individual\u2019s right to photograph and to have certain thoughts).<\/p>\n

[134] See supra text accompanying notes 112-114.<\/p>\n

[135] See generally supra note 43 and accompanying text.<\/p>\n

[136] See H.R. 787, 2013 Leg., Reg. Sess. (Fl. 2013), available at http:\/\/www.myfloridahouse.gov\/Sections\/Bills\/billsdetail.aspx?BillId=50026.<\/p>\n

[137] See id.<\/p>\n

[138] See S. 532, 2014 Leg., Reg. Sess. (Fl. 2014), available at\u00a0http:\/\/www.flsenate.gov\/Session\/Bill\/2014\/0532.<\/p>\n

[139] See id.<\/span><\/p>\n

[140] H.R. 326, 2014 Leg. Reg. Sess. (Va. 2014), available at http:\/\/lis.virginia.gov\/cgi-bin\/legp604.exe?141+sum+HB326.<\/p>\n

[141] See id.<\/p>\n

[142] See State \u2018Revenge Porn\u2019 Legislation, supra note 12.<\/p>\n

[143] See Laird, supra note 14.<\/p>\n

[144] See id.<\/p>\n

[145] Steven Nelson, Federal \u2018Revenge Porn\u2019 Bill Will Seek to Shrivel Booming Internet Fad, US News (Mar. 26, 2014), http:\/\/www.usnews.com\/news\/articles\/2014\/03\/26\/federal-revenge-porn-bill-will-seek-to-shrivel-booming-internet-fad; Dean, supra note 12.<\/p>\n

[146] See Franks, supra note 50, at 2.<\/p>\n

[147] See Dean, supra note 12.<\/p>\n

[148] See FCC v. Pacifica Found., 438 U.S. 726 (1978) (holding the Federal Communications Commission could regulate \u201cindecent speech\u201d on the radio during hours when children are likely listening); Cohen v. California, 403 U.S. 15, 19 (1971).\u00a0 \u201c[T]he First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstances that he chooses.\u201d\u00a0 Id.<\/p>\n

[149] Miller v. California, 413 U.S. 15, 24 (1973) (citation omitted).<\/p>\n

[150] See Creasy, supra note 33 at 1033.<\/p>\n

[151] See Creasy, supra note 33 at 1040.<\/p>\n

[152] Miller, 413 U.S. at 24; Citron & Franks, supra note 23, at 35.<\/p>\n

[153] Pacifica, 438 U.S. at 732.<\/p>\n

[154] Id. at 747.<\/p>\n

[155] Id. at 748; see also Rowan v. Post Office Dept., 397 U.S. 728 (1970).<\/p>\n

[156] See Mark Melnicoe, California Crackdown on \u2018Revenge Porn\u2019 in Brown\u2019s Hands, Bloomberg (Sep. 11, 2013, 2:55 PM), http:\/\/www.bloomberg.com\/news\/2013-09-11\/california-crackdown-on-revenge-porn-in-brown-s-hands.html.<\/p>\n

[157] See supra note 120-127 and accompanying text.<\/p>\n

[158] See H.R. 787, 2013 Leg., Reg. Sess. (Fl. 2013).<\/p>\n

[159] Citron and Franks also conclude that the criminalization of revenge porn is necessary; however, I am arguing specifically for a federal law criminalizing revenge porn.\u00a0 See Citron & Franks, supra note 23, at 390.<\/p>\n

[160] See Dean, supra note 12.<\/p>\n

[161] See id.<\/p>\n

[162] See Robert L. Ullmann and David L. Ferrera, Crime on the Internet, 42 B.B.J. 4, 4 (1998) (stating most Internet crime involves interstate or international communications); Anne E. Hawley, Taking Spam Out of Your Cyberspace Diet: Common Law Applied to Bulk Unsolicited Advertising Via Electronic Mail, 66 UMKC L. Rev. 381, 385 (1997) (discussing the inadequacy of state legislation in controlling spamming problems because Internet activities cross jurisdictional boundaries).<\/p>\n

[163] Kevin V. Ryan & Mark L. Krotoski, Symposium, Big Brother in the 21st Century?: Reforming the Electronic Communications Privacy Act: Caution Advised: Avoid Undermining the Legitimate Needs of Law Enforcement to Solve Crimes Involving the Internet in Amending the Electronic Communications Act, 47 U.S. F. L. Rev. 291, 291\u201392 (2012).<\/p>\n

[164] See Nelson, supra note 137.<\/p>\n

[165] See Franks, supra note 50, at 4.<\/p>\n","protected":false},"excerpt":{"rendered":"

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