SciFi is now: Revenge porn, a 21st Century crime

As I wrote in 21st Century crime scenes from KPBS, “We may not have flying cars, but we are starting to have crimes right out of Johnny Mnemonic.”  I also remarked in E-Cigs: A 21st Century health issue, “technology is providing new opportunities to run afoul of the law in ways that were in science fiction 20-30 years ago.”  Here is an ongoing story about one such crime that is being covered by KPBS.

First, the video and story that I included in Overnight News Digest: Science Saturday (Jade Rabbit lands on Moon).

What's Happening Now With San Diego Man's Arrest For Revenge Porn Website

A San Diego man was arrested Tuesday on charges related to operating a revenge porn website. It's the first bust of its kind since California criminalized revenge porn earlier this year.

San Diego Man Arrested In Connection With Revenge Porn Website
By David Wagner
Tuesday, December 10, 2013

Kevin Bollaert, 27, allegedly owned and operated ugotposted.com, one of the most notorious examples of revenge porn. It allowed users — often vindictive ex-boyfriends — to anonymously upload nude photos of women without their consent.

The site connected photos with identifying information about the women pictured, including their names, ages and Facebook profiles. Victims reported being harassed and intimidated by the site's visitors.

Follow over the jump for more.

There are all kinds of issues involved with Bollaert’s site and his arrest for running it.  One of them is that Bollaert isn’t actually charged for running a revenge porn site, but for violating other statutes about identity theft.  That might not work out so well for the State of California, as KPBS noted when it asked How To Prosecute A Revenge Porn Profiteer?
By David Wagner
Tuesday, December 17, 2013

Making money by exposing the private, nude images of strangers may be sleazy, but is it illegal?

That's the question facing Kevin Bollaert, a San Diego man who ran what's called a revenge porn website. He was arrested last week and is scheduled to appear in court Tuesday. In the court papers filed against him, the 27-year-old is quoted as saying, "I know a lot of people are getting screwed over like on the site. Like their lives are getting ruined."

But legal scholars say the charges he's facing may not fit the crime. And California's new law against revenge porn doesn't even apply in his case, which demonstrates just how tricky it is to outlaw bad behavior online.

The identity theft issue may not apply either, as Eric Goldman noted.

OK, so how did Bollaert use the personal information for an unlawful purpose? The arrest warrant indicates three different unlawful purposes.

First, the prosecutors allege that pay-to-remove-content constitutes extortion. I think most of us would colloquially refer to an offer to suppress information about a person in exchange for money as “extortion,” but did it satisfy the criminal elements of extortion? I believe that’s an untested legal question (recall a similar allegation against Topix). On the plus side, the allegations clearly assert that Bollaert himself, not his users, established and controlled the pay-to-remove scheme.

The other two asserted unlawful purposes are (1) online harassment per Penal Code 653m(b) (criminalizing “repeated contact by means of an electronic communication device”), and (2) the civil tort of public disclosure of private facts (citing a troubling precedent, In Re Rolando S.). Unlike the extortion claim, both allegations depend on the behavior of the website’s users. The complaint doesn’t allege that Bollaert himself made repeated contacts with victims using an electronic communication device, or that Bollaert himself disclosed anyone’s private facts. Instead, the complaint alleges that Bollaert ran a UGC website where users performed unlawful activities. But that’s exactly what UGC websites do: they let users publish content online for both good and evil. If we hold UGC website operators responsible for the fact that their users sometimes commit crimes, then all UGC website operators are criminals.

Fortunately, that’s not the law. In 1996, in 47 USC 230 (Section 230), Congress said that websites aren’t liable for third party content, even if the third party violates state criminal law. From my perspective, based on the allegations in the complaint and arrest warrant, the identity theft charges predicated on harassment and privacy violations appear to be preempted by Section 230 (I’m reserving judgment on the extortion-based claims, which I think pose harder questions). If the prosecution gets that far, the prosecutors will surely assert some rarely successful exceptions to Section 230. Prof. Ryan Calo explores that possibility.

As much as I find Bollaert’s activities reprehensible, I agree with Goldman.  Section 230 of the Communications Decency Act will likely protect him from the harassment and privacy violations, and they should.  Then again, I have a dog in this fight, as I’ve been a beneficiary of the third-party protections of the Communications Decency Act.  They helped me, and I don’t want them eroded for anyone else, even scum like Ballaert.

As for the extortion-based charges, I am not a lawyer, but I hope those hold water.