Cyber Crime Review
Cyber Crime Review

November 2022
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Should it be illegal to put a nude photo of your ex on the Internet?

Cyber CrimesCyber Crimes

Though I spend a lot of time on the Internet, there is still a lot I haven’t seen. I read recently about “Is Anyone Up?” (which recently decided to shutdown), a website that allowed users to submit nude photographs of others, many of which were referred to as “pornographic souvenirs from relationships gone sour.” Most posts also began with a screenshot of the person’s Facebook profile.

Of course, there are several civil remedies that could be used to stop such postings, but is the act criminal? Congress tried to act on this most recently in 2005 with the Personal Pictures Protection Act of 2005. The bill would have allowed imprisonment of two years for placing sexually explicit photos online without permission.

This is a stretch, but under 18 U.S.C. § 2257, there is a requirement that “whoever produces any … digital image … of an actual human being … which contains … actual sexually explicit conduct” and goes through interstate commerce “shall create and maintain individually identifiable records pertaining to every performer portrayed.” Punishment is up to five years in prison. Interstate stalking might also apply (18 U.S.C. § 2261A).

State law would certainly be the way to go. Most states’ obscenity statutes would likely cover this type of act (see Ala. Code 1975 § 13A-12-200.3; A.C.A. § 5-68-303; McKinney’s Penal Law § 235.00). In Utah, the distribution of pornographic material statute punishes a person who creates, distributes, or promotes pornography (U.C.A. 1953 § 76-10-1204). New Jersey’s invasion of privacy statute punishes the act with up to five years in prison (I couldn’t find the citation, but my source is here).
After a quick Google search for cases on this issue, I was only able to find a few. One man posted nude images of his wife under her name, and he was charged with identity theft. Another man was charged with cyberstalking and hacking. A Pennsylvania state trooper pled guilty to misdemeanor harassment for his postings. Cases with age issues have been charged under sexting or child pornography statutes. The issue seems be be taken more seriously in Europe with many countries having statutes that deal specifically with this act.

Certainly this should be an illegal act, and the publication is something the victim should be able to stop, but is it too late? Are people so used to the idea of the Internet being open to nearly any activity that such a statute would change the nature of the Internet?

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