This essay first appeared in Cliterati on October 13th; I have modified it slightly to fit the format of this blog.
While the internet is the greatest mass-communication innovation since the printing press, it has also created a few social problems that did not previously exist. Unfortunately, the attempts of Luddites and control freaks to deal with these issues resemble, as do so many other governmental attempts to “do something”, an attempt to break an egg with a sledgehammer. Take “revenge porn”, for example. For those who are blissfully unaware of this rather nasty little phenomenon, it’s the practice of uploading sexy photos of exes to the internet in order to expose them to public humiliation and even to damage them economically, since many prospective employers, licensors and the like now routinely attempt to dig up all the dirt they can via Google. Nor is this economic damage merely passive: about a year ago the twisted minds of those who run these sites recognized that they could charge people hefty fees to take down their pictures. Technically, this isn’t blackmail, which is defined as demanding payment not to reveal something; these pictures have already been revealed. Furthermore, the charges are disguised as “service fees”, just as banks claim it really costs them $25 or more to deal with a bounced check. But because sex is involved, it was a safe bet politicians wouldn’t ignore the issue for long, and because they are politicians, it was a safe bet the response would be neither reasonable nor moderate. But as Dr. Brooke Magnanti points out, the issue isn’t as simple as they pretend:
…The American Civil Liberties Union opposed the first draft of California’s revenge porn bill on [free speech] grounds. Florida also rejected a similar bill earlier this year…as long as nude pictures are considered objects of shame, we have a problem…And as ever, laws that monitor anything to do with sex have a nasty habit of being misused by police to bring trumped-up convictions. While a fine seems eminently reasonable to discourage this undesirable behaviour, jail time does not. If the victim must show they suffered emotional distress or humiliation, surely this would be better handled in civil rather than criminal law? And…with California’s already overcrowded penal system suffering the effects of the “war on drugs”, can they really afford a “war on revenge”?
Noted free speech attorney Marc Randazza agrees that civil law is the proper vehicle here, and if California insists on “doing something”, maybe that “something” should be banning discrimination against people for having taken sexy pictures or video in the first place. But while (as so often happens) California was first out of the gate, it didn’t take long for New York to follow with a “significantly improved” version which would not only increase the penalty to $30,000, but also (as Scott Greenfield explains) extend to people who post their own nude photos:
“…California’s law…can only be used to prosecute individuals who personally took naked photos of someone else and then disseminated the images against the subjects’ will, New York’s proposition would…apply to making sexually explicit self-portraits public”…[the bill’s sponsors] have gone so far as to issue a press release about their plan to save people from themselves, explaining how they will make a more perfect world. “…the majority of its victims are women who don’t know that their images and likenesses has been bartered and sold over the internet…Criminalization is preferable to civil suits…because civil suits do not deter those who upload or disclose new images after a…suit has ended…This bill is narrowly drawn so as not to infringe on First Amendment rights”…So the nice gal who revealed Anthony Weiner’s selfies is a criminal?…
Did you note the “sex trafficking” undertones there (“victims…bartered and sold over the internet”)? That’s courtesy of one of the bill’s chief architects, a Florida law professor and neofeminist named Mary Anne Franks who interned under Catharine MacKinnon and has written a long string of articles on porn, “sexual harassment” and other favorite neofeminist targets (she has never actually practiced law). But while Franks and her bluenosed cronies are busy promoting a law which will also criminalize escort advertising and online porn, they have largely ignored a very similar, equally sleazy online racket because it doesn’t involve sex and affects far more men than women:
…a handful of…[mug shot aggregator websites] routinely show up high in Google searches…[their] ostensible point…is to give the public a quick way to glean the unsavory history of a neighbor, a potential date or anyone else…[but they] make money…by charging a fee [of up to $400] to remove the image…To…millions…now captured on one or more of these sites, this sounds like extortion. Mug shots are merely artifacts of an arrest, not proof of a conviction, and many people whose images are now on display were never found guilty, or the charges against them were dropped. But these pictures can cause serious reputational damage…
When the New York Times contacted the companies who enable this extortion, an interesting thing happened:
Initially, a Google spokesman…fielded questions…with a statement that amounted to an empathetic shrug…Two days later, he wrote…that the sites…run afoul of a Google guideline…[and] the company …[has introduced an] algorithm change…[to disfavor the sites in image searches]…officials at MasterCard…contacted the merchant bank that handles all of its largest mug-shot site accounts and urged it to drop them as customers…PayPal came back with a similar response…American Express and Discover…both…said they were severing relationships with mug-shot sites. A representative of Visa wrote to say it was asking merchant banks to investigate business practices of the sites…
In other words, businesses handled the problem far more quickly and effectively than legislators ever could, and without giving cops and prosecutors a new weapon to use against people who never hurt anyone; “revenge porn” could easily be handled in exactly this same way. But doesn’t this, as some reporters have opined, amount to censorship? Mike Riggs argues otherwise:
…The case against releasing mugshots was probably made most effectively in 1999 by the U.S. District Court of the Eastern District of Louisiana, which ruled against releasing the mugshot of Edward J. DeBartolo, Jr…In its ruling, the court…noted that mugshots [are]…”intended for the use of a particular group…of persons”…Like fingerprints, mugshots are used by law enforcement to identify people. Over time, the press began to treat them as “public documents,” and some courts have agreed. It’s clearly time to renegotiate that claim. Two decades ago, unless you were a celebrity or a nobody accused of a particularly heinous crime, your mugshot wasn’t worth much. Today, it’s worth something to a lot of different parties: mugshot sites want to bank on prying eyes, neighbors want to know more about their neighbors, etc…Yet people lived without having this information at their fingertips until about 2010, when the first of the mugshot sites began to pop up…Making [mugshots] publicly available turns an investigative tool into a lifelong punishment.
I concur, but I’d like to borrow one further argument from Radley Balko:
…The names of misbehaving prosecutors are rarely if ever included in…court opinions that find misconduct…Some prosecutors argue that they should be protected from false allegations…[but Ken White of Popehat] said…”You’re dealing with a justice system where the defendant never gets that kind of protection of anonymity. There’s no delay in releasing his name until he’s actually convicted. Instead, prosecutors put out press releases and make public statements about the accused. I just don’t think there’s a legitimate argument you can make as to why prosecutors should get more protection…than defendants do”…
If “authorities” want to argue that people’s reputations deserve protection from false accusations, surely equality under the law demands that all citizens deserve that same protection? And if they think the posting of a mere nude photo, which does not in itself constitute an accusation of wrongdoing, should be a criminal offense, what about all the police and other “official” websites which post far more damaging photographs (which are then scooped up by mugshot sites)? Surely they should be criminally prosecuted as well? Of course, this will never happen; government repeatedly grants to even its most minor actors immunity from the edicts by which it establishes universal criminality for the rest of us. But the only way there will ever be even the slightest chance of change is for people to wake up and recognize the true intent of every law our rulers present as intended to “protect” us.
Pardon me for asking, but is that YOUR mug shot posted with this article?
Fuck no – that’s not Maggie … Maggie is 100 times more beautiful than that! LOL
Look at the date on the tag around her neck, dear; April 16th, 1963 was before my parents even met. The lady is Janet Conforto, a stripper and sometimes-hooker who worker for Jack Ruby and was thus connected to the Kennedy assassination intrigue. I thought it was an appropriate choice considering today’s date.
Oooh, I’ve heard of her. This was the first time I’ve ever seen her picture.
Speaking of anniversaries, do you plan to re-post “Companion” tomorrow?
Ha! No, but I’ll “tweet” about it. 😉
Personally? I’m for criminalizing the websites. I’m also for criminalizing the posting of mugs on the internet – AND … the “Jailhouse Times” paper publication that I see every week in the convenience store that I buy gas at.
This may not be a libertarian position – but I do think that individuals deserve protection from scammers, thieves, and blackmailers. Yes, I do consider this a form of blackmail because the longer an image remains on the internet – the more damage is done to the individual. Sooo … in essence, you’re being “stung” a bit … and then told the pain will get exponentially worse until you PONY UP.
And yeah – I’m not only for protecting people against scammers – but also the police. However, I do draw the line at “most wanted” lists. I see nothing wrong with those – they’re images of suspected criminals that law enforcement are searching for. However, after LE has found an individual and questioned him – and either or arrested or released him – I see no reason to publicize the individual’s image.
I also have a problem with sex offender “maps” … and sex offender “registries” in general. Once a person has paid his dues to society – he SHOULD be able live his life in peace. If he’s still considered a threat – then he needs to be IN JAIL.
Now – if a person wants to upload a pic of themselves nude – then more power to them. LOL – I encourage ALL women to do so! 😛
I’m mostly with you, though I’d just ban it rather than criminalizing it. It was held since ancient times that a person’s image was that person’s personal property, and even now we still require people to give permission for the release of their images…unless the Holy Cops take that picture, at which point the necessity for permission is magically lifted. I say hell, no; cops should have no such magical powers, and should still require a release for any use outside of direct police usage. That also means that if I were dictatrix, “perp walks” would be banned.
Yeah I 100 percent agree with all that. Especially the part concerning the cops.
Hmmm … “Dictatrix” … I like the sound of that. Pray tell – what would your uniform be? 😀
I’m not even going to tell you what I’m imagining!!! Muahahahaha! I have your IMAGE floating around in my brain and I’m USING it! LOL
(Don’t worry – I won’t post it anywhere!)
Copyright; if I take (“make”) a selfie, the copyright is mine, and you should not use it without my permission. That’s how I understand the position in the UK; are there differences in the US?
I give up – what’s the diff between “banning” and “criminalizing” something?
“Banning” means it’s not allowed; sites doing it are simply cancelled, in exactly the same way other infringing material is taken down. That’s a far cry from throwing even more non-violent people into our disgustingly-bloated prison system.
How can they upload pics, when you just demanded that the owners of the sites be put in jail?
I specified (probably not very articulately) that I wanted to only criminalize the “pseudo blackmailing” sites. Stuff like FUBAR.COM or HOTMILITARYGIRLS.COM would still be fine as long as the image was self-posted or had permission of the person in the pic. Now … I know sometimes boyfriends may post to innocent websites that don’t do blackmailing without the permission of the girl – but in that case – she’s not facing an anomalous entity – she KNOWS her boyfriend and should be able to handle him in either criminal or civil court.
“…as long as nude pictures are considered objects of shame, we have a problem…”
The courts increasingly treat simple nudity as pornography.
To be fair, the courts also increasingly treat the courts as objects of shame, and therefore conducts them in secret. :/
I’m somewhat reticent about the idea that mugshots shouldn’t be released. I’m not sure whether making our criminal justice system less of a type of violent pornography for the puerile amusement of the masses, and more like a shadow state for unwitting enslavement of the ignorant, is actually an improvement.
Part of the reason for making the justice system public is that’s a way for the public to be able to control the justice system. People are supposed to go “hey, wait, that’s my neighbor you’re charging!”
That really went off on a tangent.
It would probably be a good idea if people would stop paying these sites. I understand the damage they do, but we should stand up to intimidation. And some other site will just make the same demands again anyway. It’s not like you can ever pay “The Internet” off.
Preferably to having the government dealing with things, or even businesses dealing with things, is us dealing with them ourselves. And revenging some ex like that really is awful, I’d be okay with publicly shaming those people.
And perhaps we should stop taking naked pictures of ourselves. As great as the smartphone is, I can make do with reflective surfaces. Hey there tiger.
There will always be jurisdictions in the world where these sites can operate. I suggest, instead, that search engines like Google be persuaded (by advertiser boycotts if necessary) to stop showing the “revenge” sites when someone searches for the name of one of the individuals pictured.
I like your idea of banning discrimination of people who have appeared in sexy pics or video (or, while we’re at it, for any sexual behavior not involving violence or real children). But this would run into the same practical limit that already makes most of our existing discrimination laws (for example, against older workers) worthless — the fact that it’s impossible to prove the reason for a decision (such as) not to hire someone, at least unless the person who discriminates is so stupid as to state his reasons in writing or in front of witnesses.
The only way I can see to make such a law work is to enact European style employment laws (which, rather than banning job discrimination for a dozen or so specific reasons, ban it for ANY reason except a short “allowed” list, and require the employer to go to a hearing and prove that one of the allowed reasons applies every time he lets an employee go).
And that cure is probably worse than the disease.
What about people seeking jobs though? I have done hiring for companies before – I get five, ten applicants … and pick the best one. I can easily exclude someone and I can make up the reasons. You would not believe – sometimes you look at the applications and resumes – and YOU KNOW who you’re going to pick before the interviews even start and then …
The interviews start and you pick the guy or gal with the worst resume – just because they did a great interview and seem to be the type of person that would easily integrate into the company.
Speaking for me – nude pics would not preclude me from hiring someone. I actually tried to fight the discharge of this girl from the Navy …
http://www.military.com/NewsContent/0,13319,123390,00.html
I told them if they didn’t want her in SUBPAC – which was fucking dieing for IT’men (of which – she was one) … then I could put her in recruiting. I was serious about it too. We threw her out at the same time I was keeping prisoners on active duty just so I could count them for end strength – and yeah, I was ordered to do that (it just meant they didn’t get discharged for a few weeks – they let them OUT of prison on time so don’t scream at me).
But boy – it was like I stuck my bare hand in hot molten lava … I was IMMEDIATELY told to stand the fuck down! LOL
And speaking of that Sailor … here’s a pic – NSFW …
http://www.imagebam.com/image/310f24213062273
Chick was HOT and we kicked her out. I always thought the Navy was SEXY … sexy guys – sexy girls … we were all certainly very naughty and I’d put us up against college kids any day of the week – and we’d have blown them away with the sinful shit we did.
Work hard – PLAY HARD. We had some hot chicks in the Navy – but all anyone ever heard about was the ugly ones. Then again – all anyone heard about us Navy guys was all the STD’s we had – which wasn’t true.
But yeah – I tend to think that people like to work for SEXY organizations and companies. And with all the manpower problems we had back then.
Man – what a waste … and she was a Sailor of the Year. You should have seen the jaws drop in that meeting where I said I’d use her for recruiting. LOL! This was around the time we had 5,000 recruiters on the streets of American (and that’s an aircraft carrier compliment) … desperately trying to find guys and gals to enlist.
She is hot. Watch out for the pop-ups.
The European, or at least the German, law would work for new hires too. The unemployment agency picks the person who’s been waiting longest and sends them to interview. If they don’t show, or if you offer the job and they don’t take it, they have to show a good reason or lose their benefits. If they show and you don’t offer the job, YOU have to show a good reason, or you may be ordered to hire them. (If they really aren’t a fit, the agency sends you the next person on the list. I think after three “misses” then you’re allowed to pick somebody yourself.)
This certainly isn’t a perfect system but it does have two advantages over ours. One is that all kinds of discrimination laws become possible to enforce. The other is that people who don’t have the skill of finding a job won’t suffer — the agency does it for them.
Here in Oklahoma (and probably some other states, too), we have a ‘newspaper’ called Jailbirds. It has the mug shots of everyone arrested in the local county over the past month. It’s sold in nearly all the convenience stores. I’ve refused to ever look through one, even when friends have wanted to show me somebody they know in it.
I’ve wondered at times if they ever print whether somebody was acquitted or had the charges dropped. Probably not, but I’ve never checked to find out.
Why should blackmail be a crime? I can release embarrassing information about someone but if I give the person the option of paying me not to release I have done wrong? Never made sense to me.
And here is the problem with considering financial transactions the bedrock of reality.
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