Cyber Crime Review
Cyber Crime Review

November 2022
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Wisconsin’s “revenge porn” bill goes too far. Hypos to ponder and why the legislature should look to Professor Franks

Cyber CrimesCyber Crimes

The Wisconsin legislature recently proposed a “revenge porn” bill (Assembly Bill 462, full text here: https://docs.legis.wisconsin.gov/2013/related/proposals/ab462.pdf). While I applaud the Wisconsin legislature for addressing an issue that has garnered national attention, I interpret the current proposal (unless I am missing something, and I encourage you to prove me wrong), to criminalize a whole host of conduct having nothing to do with revenge porn. (Of course, if the proposed bill ends up becoming law, the text introduced here may vanish in the final Act; that said, I was still quite surprised that such ambiguous and broad language was proposed in the first instance).
Here is the relevant text:

942.09 (3m) (a) Whoever, without the consent of the person represented,
reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates a
representation of a nude or partially nude person or of a person engaging in sexually
explicit conduct is guilty of a Class A misdemeanor. The consent of the person
represented to the capture of the representation or to the possession of the
representation by the actor is not a defense to a violation of this subsection.

…(various non-controversial exceptions)

(c) This subsection does not apply if the person represented consented to the
reproduction, distribution, exhibition, publication, transmission, or other
dissemination of the representation for commercial purposes.

This language, to me, omits key words in the model state statute Professor Franks proposes and, by doing so, is overbroad. My reasoning (with hypotheticals calling the language into question):

(1) I think the obvious flaw is omission of a scienter requirement (particularly “intentionally”). If I take a nude photo of my girlfriend with her consent, but accidentally email it to my friend instead of a photo of a wet kitten, I violate this statute.

(2) The more interesting flaw (and one that implicates the 1st Amendment, perhaps), is that it might criminalize merely emailing any non-commercial pornographic picture. So, if I spend my nights surfing porn and emailing the best photos I find to my friends, but I cannot prove that I had the consent of the person represented to send that image, am I committing a crime? And, moreover, how does one know if they can be saved by subsection (c) — i.e. how does one determine if a pornographic photo was consented to for commercial purposes? (Most images lack any identifying origin). Amateur pornography (and nude self-expression/artistic work) may not be commercial in nature; so, if my neighbor is a free spirit and loves to mail me artistic nude photos taken consensually by her friend, am I committing a crime if I photocopy the picture (reproduce it) for my own personal use (without her consent)?

(3) Also, I saw an amendment to the bill proposing that “fine art” be exempt from the statute. This makes sense because as the language stands, displaying nude paintings of anyone without their consent runs afoul of the existing language. But, even exempting fine art, if I create a pencil sketch of a female nude model (arguably a representation of her without a statutory definition of “representation”) and show it at an art exhibit without her consent, is that a violation? (this example supposes, correctly, that no one would consider my sketches (or paintings) as “fine art”). The hypo is equally applicable to a photo I suppose.

(4) One last set (these are less about Wisconsin’s statute and more about the enforcement of any such “revenge porn” statute). What if the nude person in the representation is now dead? If my girlfriend dies in a car accident with her secret lover and, to get back at her for the infidelity, I post all of our intimate photos online, is that a crime? (I think I lean towards yes, but how does one prove she did not consent?) Alternatively, if my grandmother leaves me a nude photo of her in her will and I post it to my Facebook page, crime? (My grandmother’s consent is impossible to prove; however, can my grandfather’s abhorrence at my conduct serve as the predicate for a violation of the Wisconsin statute?).

Do not take my criticism of the Wisconsin proposal as a condemnation of statutes like this. But, criminalizing any conduct requires a statute narrowly drafted to achieve the overarching goal without: (1) criminalizing conduct not contemplated by the legislature (see, e.g., the CFAA); (2) infringing on protected First Amendment rights; and (3) punishing conduct that misses the “revenge” part of “revenge porn.”
The last point is worth elaborating on. “Revenge” is defined in a variety of ways,  see, e.g., the Free Dictionary depending on the context. But, the substance of the word “revenge” is not hard to discern when it is used as a weapon against another; for example, “revenge, reprisal, retribution, [and] vengeance suggest a punishment or injury inflicted in return for one received. [R]evenge is the carrying out of a bitter desire to injure another for a wrong done to oneself or to those who are close to oneself: to plot revenge for a friend’s betrayal.” Id. Legislatures took notice of “revenge porn” after tragic events and horrific stories popped up on the internet about individuals (often female) being tormented by ex-lovers wishing to exact punishment for real or perceived harm. The nationwide legislative focus on a this sociological phenomenon is, to be sure, quite encouraging.

However, Wisconsin’s current proposal reinforces the well-founded fear of many (including organizations like the EFF and ACLU) that statutes intended to cure “revenge porn,” without careful drafting, might overreach and infringe on First Amendment rights. My overarching fear is that legislative bodies will get lost in the morality of pornography (or personal conceptions of permissible social interactions), instead of focusing on the “easy win”  a narrow statute intended to prevent revenge porn’s abhorrent invasion of privacy might provide.Additionally, notwithstanding the considerations above, it cannot be ignored that a digital photograph published to the internet exists long after the subject of the photo is gone. Digital photos can be cached, preserved as screenshots, or archived by third-party sites like the Wayback Machine. Part of the “revenge” inherent in revenge porn is that the person possessing the nude/pornographic picture is well aware of the above considerations and ignores them as part of the intent to exact revenge.
That said, I must admit that I disagree with the California revenge porn statute; I do not understand requiring something more than “intent” (i.e., an intent to harm as the CA statute reads) to criminalize “revenge porn.” While the mens rea for revenge porn might persist as a point of contention, my take is that: an intent to harm rquirement is unnecessarily restrictive; but, at the other end of the spectrum, no scienter requirement (as is the case in Wisconsin AB462) is impermissibly overbroad (see supra).

I don’t have all the answers, but my suggestion is that the Wisconsin Legislature look to the wording Professor Franks has proposed as a method to revise the current proposal.

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