Revenge pornographers feel blow of revised California law

Attorney+General+Kamala+D.+Harris+addresses+a+news+conference+on+Tuesday%2C+Feb.+3%2C+2015%2C+on+the+verdict+in+the+cyber+exploitation+%22revenge+porn%22+trial+in+Los+Angeles.+where+Kevin+Bollaert+was+found+guilty+of+six+counts+of+extortion+and+21+counts+of+identity+theft.+%28Irfan+Khan%2FLos+Angeles+Times%2FTNS%29

Attorney General Kamala D. Harris addresses a news conference on Tuesday, Feb. 3, 2015, on the verdict in the cyber exploitation "revenge porn" trial in Los Angeles. where Kevin Bollaert was found guilty of six counts of extortion and 21 counts of identity theft. (Irfan Khan/Los Angeles Times/TNS)

Nicolette Hinojos

Hunter Moore, founder of a now-defunct revenge porn website, plead guilty to charges of hacking and identity theft in Los Angeles federal court Feb. 19.

Moore will be facing 2-7 years in prison when sentenced in the Spring.

The conviction comes on the heels of several other high-profile cases involving California’s anti-revenge porn law, which is an amendment to the California invasion of privacy law that makes it illegal to post any nude photo or video of an identified person without their consent on the internet.

In a day and age where almost anything can be done with a cellphone it isn’t uncommon for couples to share explicit messages, pictures or videos with one another.

This content, which is sometimes posted as a means of “getting back” at the person shown, is popularly known as revenge porn.

According to a study by the security software firm McAfee, 49 percent of adults use their mobile device to “sext.”

However, what happens when the relationship ends, and someone is left bitter enough to post those once private moments on the internet?

As of October 2013 the act of posting sexually explicit pictures without a persons’ consent is punishable by a fine and or jail time under the recent law.

The law was later revised in 2014 to include selfies.

Although there has been some success with the law, there are still concerns on whether it is possible to get a conviction, with having to prove emotional distress, and whether the law gets in the way of freedom of speech.

“Essentially what [the law] does is make it a misdemeanor that is punishable by either six months imprisonment or $1,000 or both,” said business law professor, Kurt Saunders.

Saunders said that in order for the prosecutor to get a conviction they have to show the defendant posted the photo or video of an identifiable person without their consent. Along with proving their intent was to cause that person severe emotional distress, and that they actually cause harm.

The law now makes revenge porn a misdemeanor and part of invasion of privacy, but getting a conviction can prove difficult when one of the requirements means the prosecutor has to find out what the defendant was thinking at the time they posted the picture or video.

Part of the bill explains that in order to get a conviction the prosecutor has to prove the defendant was trying to cause emotional distress.

“There has to be some evidence that we can look at, obviously we don’t know what’s going on in his or her mind,” said Saunders. “We have to be able to look at what they did and how it was done, where it was put, how it was distributed, what was in the photos and surmise from that what the intent was.”

The first conviction for revenge porn came in December 2013 when Noe Iniguez was successfully sued by his ex-girlfriend under the new law after he posted topless photographs of the woman on her employer’s Facebook page. Along with the photo he also posted a comment urging her employer to fire her and calling her a “drunk” and a “slut,” according to the LA Times.

Kevin Boellart, 28, ran a site called UGotPosted.com along with another site called ChangeMyReputation.com, both of which have been taken down. Those who posted on these sites were required to post links to the victims Facebook pages, their names, addresses, phone numbers and other social media sites. When the victims asked for the pictures to be removed Boellart would charge them up to $350 each, according to the prosecution.

Boellart, was found guilty of 27 felony counts, including extortion and identity theft, by a San Diego County Superior Court.

There have been some objections to this new law regarding freedom of speech by groups, including the American Civil Liberties Union, stating the language in the law is too broad.

Former Judge Andrew Napolitano said on Fox News in 2013, when the law first came out, the First Amendment should protect revenge porn because criminalizing a photo or video that was given freely would be invalidated by the First Amendment.

Napolitano later went on to say the amendment is “not the guardian of taste.”

Much like Napolitano, the American Civil Liberties Union was against the bill when it was being drafted.

In the bill analyses, the ACLU stated “the posting of otherwise lawful speech or images even if offensive or emotionally distressing is constitutionally protected.”

Once the bill was finalized, and it was added the victim had to prove emotional distress, the ACLU had no more objections.

According to Saunders, there’s a potential freedom of speech issue with the law because anytime you are restricting what people can say or post, you are putting a restriction on their freedom of speech.

Saunders also said that although the law may infringe on freedom of speech there are some instances where speech can be restricted. For example, speech that can ruin someone’s reputation.

California is one of 13 states attempting to put a stop to revenge porn with similar legislation. The Cyber Civil Rights Initiative and victim advocate groups support these laws because they give victims a legal course of action which they did not have access to before the legislation was put in place.

“Will it stop revenge porn altogether? No, I’m sure it won’t stop it all together because prosecutors aren’t going to win all these cases,” said Saunders, “but it does provide a clear remedy for people who are in this situation.”