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<br>
Yo's-<br>
<br>
Re. Eddan's & Sonja's question, "what currently legal behavior
does this prohibit?"<br>
<br>
At present it's entirely legal to consensually record oneself &
partner having sex, and then non-consensually publish the recording
on a site where the associated verbiage has the direct effect of
exposing the victim to emotional abuse from members of the general
public. This is what the statute seeks to prohibit. <br>
<br>
The statute Eddan quoted below isn't the revenge porn (RP) statute,
it's a different one that refers to recording people without/against
their consent in times/places where by definition there is a
reasonable expectation of privacy (bedrooms, bathrooms, and the
like).<br>
<br>
In the 1980s, stalking was also a new area of the law, and liberty
issues were raised about anti-stalking laws. Prior to that time,
all a victim could do was get a restraining order or try to have a
stalker charged with trespassing. Over the past 30 years those
issues have been settled with no adverse effect on liberty.<br>
<br>
Just to be clear what we're dealing with, here are a couple of
articles about Hunter Moore, whose RP site made news (beware,
reading this stuff may make you want to vomit):<br>
<br>
<a class="moz-txt-link-freetext" href="http://www.bbc.co.uk/news/technology-17784232">http://www.bbc.co.uk/news/technology-17784232</a><br>
<br>
<a class="moz-txt-link-freetext" href="http://www.wired.co.uk/news/archive/2013-02/05/revenge-porn">http://www.wired.co.uk/news/archive/2013-02/05/revenge-porn</a><br>
<br>
Forbes raises the Anthony Weiner issue but that's clearly
irrelevant: the California law excludes "selfies" or photos one
takes of oneself. Weiner's photos were selfies, thus excluded from
protection. Case closed, no hypothetical here. <br>
<br>
The main problem I have with the statute as written, is "intent."
Proving intent can be notoriously difficult. What I would prefer is
to prohibit the act itself of publishing, without consent to
publish, any recording made in a place/time where there is a
reasonable expectation of privacy. Not just bedrooms and bathrooms,
but any area of a private residence or private vehicle. If you have
a vulnerable conversation with someone in their living room or in
their car or on a tandem bicycle, the fact that it was not a bedroom
and you were not naked, should not abrogate your expectation of
privacy. (I'll happily debate this issue in a separate thread.) <br>
<br>
In fact the two-party recording notification laws in many states
already cover this aspect, though they are not sufficient by
themselves to stop RP. Consent to record, by itself (such as where
someone consents to their partner recording them having sex), does
not also constitute consent to publish. These are two different
things, that need to be addressed separately. <br>
<br>
Press articles on the RP statute refer to opposition by the ACLU. I
searched on Ixquick and DuckDuckGo (privacy-protected search engines
that don't search you in return) and found nothing; I searched
ACLU.org and found nothing. So if anyone can find an ACLU statement
on this, please post a link.<br>
<br>
Re. "speech" claims in regard to RP: The attribution of
person-rights to "speech" is analogous to the attribution of
person-rights to corporations, and muddies the issue. A corporation
is not a natural person, it's a legal entity formed to conduct
business. "Speech" is not a person, it's an act performed by
persons, or the product of such an act. Words, images, and so on,
do not spontaneously come into existence: they are created by
persons. <br>
<br>
"Freedom of speech" is the unalienable right of persons to speak
(publish, etc.), subject only to the rarest and most limited
restrictions, such as against child pornography. And here the issue
of RP comes home to roost: Child pornography is banned precisely
because a child cannot give legal consent, and recording or
publication in the absence of consent is a form of harm with an
identifiable victim. The deep structure of RP statutes is the same
principle, that non-consensuality is a form of harm against an
identifiable victim. The a-priori "_cannot_ give consent" and the
empirical "_did not_ give consent" have the same effect: no consent
is/was given, and harm was done.<br>
<br>
The RP statute does not apply to "selfies" or if the person gives
consent to be published (as with consenting adult porn). It does
not apply if the person is not identifiable from the published
material, a more liberal provision than with regard to child porn.
It only applies if the person is identifiable and does not give
consent. That is as minimal a restraint on the right of a person to
publish an image or video, as could possibly be enacted. <br>
<br>
As with anti-stalking laws, over the course of time it will become
clear that no liberty interest, and no unalienable right, is
involved here. <br>
<br>
-G.<br>
<br>
<br>
=====<br>
<br>
<br>
<div class="moz-cite-prefix">On 13-10-09-Wed 11:42 AM, Sonja Trauss
wrote:<br>
</div>
<blockquote
cite="mid:CAEMAOD7M+iPJ9x0ZA-6XkkbG2vMU7UM52ZAGGozCu=BhkM4=zQ@mail.gmail.com"
type="cite">I have the same q as the Forbes' author - what
currently legal behavior does this prohibit? <span></span><br>
<br>
On Wednesday, October 9, 2013, Eddan Katz wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex">
CA Senate Bill SB-255 - now §647(j)(4) as of Oct. 1 - is first
'revenge porn' law in the US.<br>
Eric Goldman (awesome Santa Clara Law prof) has an interesting
analysis on the legal implications - <a moz-do-not-send="true"
href="http://www.forbes.com/sites/ericgoldman/2013/10/08/californias-new-law-shows-its-not-easy-to-regulate-revenge-porn/"
target="_blank">http://www.forbes.com/sites/ericgoldman/2013/10/08/californias-new-law-shows-its-not-easy-to-regulate-revenge-porn/</a>.<br>
<br>
If anyone has some technical observations or other feedback, I'd
be interested to hear other takes on this. Seems like a very
tricky socio-technical problem.<br>
<br>
§647<br>
<a moz-do-not-send="true"
href="http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=639-653.2"
target="_blank">http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=639-653.2</a><br>
> 647. Except as provided in subdivision (l), every person
who<br>
> commits any of the following acts is guilty of disorderly
conduct, a<br>
> misdemeanor:<br>
> (a) Who solicits anyone to engage in or who engages in
lewd or<br>
> dissolute conduct in any public place or in any place open
to the<br>
> public or exposed to public view.<br>
> (b) Who solicits or who agrees to engage in or who
engages in any<br>
> act of prostitution. A person agrees to engage in an act of<br>
> prostitution when, with specific intent to so engage, he or
she<br>
> manifests an acceptance of an offer or solicitation to so
engage,<br>
> regardless of whether the offer or solicitation was made by
a person<br>
> who also possessed the specific intent to engage in
prostitution. No<br>
> agreement to engage in an act of prostitution shall
constitute a<br>
> violation of this subdivision unless some act, in addition
to the<br>
> agreement, is done within this state in furtherance of the
commission<br>
> of an act of prostitution by the person agreeing to engage
in that<br>
> act. As used in this subdivision, "prostitution" includes
any lewd<br>
> act between persons for money or other consideration.<br>
> (c) Who accosts other persons in any public place or in
any place<br>
> open to the public for the purpose of begging or soliciting
alms.<br>
> (d) Who loiters in or about any toilet open to the
public for the<br>
> purpose of engaging in or soliciting any lewd or lascivious
or any<br>
> unlawful act.<br>
> (e) Who lodges in any building, structure, vehicle, or
place,<br>
> whether public or private, without the permission of the
owner or<br>
> person entitled to the possession or in control of it.<br>
> (f) Who is found in any public place under the influence
of<br>
> intoxicating liquor, any drug, controlled substance,
toluene, or any<br>
> combination of any intoxicating liquor, drug, controlled
substance,<br>
> or toluene, in a condition that he or she is unable to
exercise care<br>
> for his or her own safety or the safety of others, or by
reason of<br>
> his or her being under the influence of intoxicating
liquor, any<br>
> drug, controlled substance, toluene, or any combination of
any<br>
> intoxicating liquor, drug, or toluene, interferes with or
obstructs<br>
> or prevents the free use of any street, sidewalk, or other
public<br>
> way.<br>
> (g) When a person has violated subdivision (f), a peace
officer,<br>
> if he or she is reasonably able to do so, shall place the
person, or<br>
> cause him or her to be placed, in civil protective custody.
The<br>
> person shall be taken to a facility, designated pursuant to
Section<br>
> 5170 of the Welfare and Institutions Code, for the 72-hour
treatment<br>
> and evaluation of inebriates. A peace officer may place a
person in<br>
> civil protective custody with that kind and degree of force
which<br>
> would be lawful were he or she effecting an arrest for a
misdemeanor<br>
> without a warrant. No person who has been placed in civil
protective<br>
> custody shall thereafter be subject to any criminal
prosecution or<br>
> juvenile court proceeding based on the facts giving rise to
this<br>
> placement. This subdivision shall not apply to the
following persons:<br>
> (1) Any person who is under the influence of any drug,
or under<br>
> the combined influence of intoxicating liquor and any drug.<br>
> (2) Any person who a peace officer has probable cause to
believe<br>
> has committed any felony, or who has committed any
misdemeanor in<br>
> addition to subdivision (f).<br>
> (3) Any person who a peace officer in good faith
believes will<br>
> attempt escape or will be unreasonably difficult for
medical<br>
> personnel to control.<br>
> (h) Who loiters, prowls, or wanders upon the private
property of<br>
> another, at any time, without visible or lawful business
with the<br>
> owner or occupant. As used in this subdivision, "loiter"
means to<br>
> delay or linger without a lawful purpose for being on the
property<br>
> and for the purpose of committing a crime as opportunity
may be<br>
> discovered.<br>
> (i) Who, while loitering, prowling, or wandering upon
the private<br>
> property of another, at any time, peeks in the door or
window of any<br>
> inhabited building or structure, without visible or lawful
business<br>
> with the owner or occupant.<br>
> (j) (1) Any person who looks through a hole or opening,
into, or<br>
> otherwise views, by means of any instrumentality,
including, but not<br>
> limited to, a periscope, telescope, binoculars, camera,
motion<br>
> picture camera, camcorder, or mobile phone, the interior of
a<br>
> bedroom, bathroom, changing room, fitting room, dressing
room, or<br>
> tanning booth, or the interior of any other area in which
the<br>
> occupant has a reasonable expectation of privacy, with the
intent to<br>
> invade the privacy of a person or persons inside. This
subdivision<br>
> shall not apply to those areas of a private business used
to count<br>
> currency or other negotiable instruments.<br>
> (2) Any person who uses a concealed camcorder, motion
picture<br>
> camera, or photographic camera of any type, to secretly
videotape,<br>
> film, photograph, or record by electronic means, another,<br>
> identifiable person under or through the clothing being
worn by that<br>
> other person, for the purpose of viewing the body of, or
the<br>
> undergarments worn by, that other person, without the
consent or<br>
> knowledge of that other person, with the intent to arouse,
appeal to,<br>
> or gratify the lust, passions, or sexual desires of that
person and<br>
> invade the privacy of that other person, under
circumstances in which<br>
> the other person has a reasonable expectation of privacy.<br>
> (3) (A) Any person who uses a concealed camcorder,
motion picture<br>
> camera, or photographic camera of any type, to secretly
videotape,<br>
> film, photograph, or record by electronic means, another,<br>
> identifiable person who may be in a state of full or
partial undress,<br>
> for the purpose of viewing the body of, or the
undergarments worn<br>
> by, that other person, without the consent or knowledge of
that other<br>
> person, in the interior of a bedroom, bathroom, changing
room,<br>
> fitting room, dressing room, or tanning booth, or the
interior of any<br>
> other area in which that other person has a reasonable
expectation<br>
> of privacy, with the intent to invade the privacy of that
other<br>
> person.<br>
> (B) Neither of the following is a defense to the crime
specified<br>
> in this paragraph:<br>
> (i) The defendant was a cohabitant, landlord, tenant,
cotenant,<br>
> employer, employee, or business partner or associate of the
victim,<br>
> or an agent of any of these.<br>
> (ii) The victim was not in a state of full or partial
undress.<br>
> (k) In any accusatory pleading charging a violation of
subdivision<br>
> (b), if the defendant has been once previously convicted of
a<br>
> violation of that subdivision, the previous conviction
shall be<br>
> charged in the accusatory pleading. If the previous
conviction is<br>
> found to be true by the jury, upon a jury trial, or by the
court,<br>
> upon a court trial, or is admitted by the defendant, the
defendant<br>
> shall be imprisoned in a county jail for a period of not
less than 45<br>
> days and shall not be eligible for release upon completion
of<br>
> sentence, on probation, on parole, on work furlough or work
release,<br>
> or on any other basis until he or she has served a period
of not less<br>
> than 45 days in a county jail. In all cases in which
probation is<br>
> granted, the court shall require as a condition thereof
that the<br>
> person be confined in a county jail for at least 45 days.
In no event<br>
> does the court have the power to absolve a person who
violates this<br>
> subdivision from the obligation of spending at least 45
days in<br>
> confinement in a county jail.<br>
> In any accusatory pleading charging a violation of
subdivision<br>
> (b), if the defendant has been previously convicted two or
more times<br>
> of a violation of that subdivision, each of these previous<br>
> convictions shall be charged in the accusatory pleading. If
two or<br>
> more of these previous convictions are found to be true by
the jury,<br>
> upon a jury trial, or by the court, upon a court trial, or
are<br>
> admitted by the defendant, the defendant shall be
imprisoned in a<br>
> county jail for a period of not less than 90 days and shall
not be<br>
> eligible for release upon completion of sentence, on
probation, on<br>
> parole, on work furlough or work release, or on any other
basis until<br>
> he or she has served a period of not less than 90 days in a
county<br>
> jail. In all cases in which probation is granted, the court
shall<br>
> require as a condition thereof that the person be confined
in a<br>
> county jail for at least 90 days. In no event does the
court have the<br>
> power to absolve a person who violates this subdivision
from the<br>
> obligation of spending at least 90 days in confinement in a
county<br>
> jail.<br>
> In addition to any punishment prescribed by this
section, a court<br>
> may suspend, for not more than 30 days, the privilege of
the person<br>
> to operate a motor vehicle pursuant to Section 13201.5 of
the Vehicle<br>
> Code for any violation of subdivision (b) that was
committed within<br>
> 1,000 feet of a private residence and with the use of a
vehicle. In<br>
> lieu of the suspension, the court may order a person's
privilege to<br>
> operate a motor vehicle restricted, for not more than six
months, to<br>
> necessary travel to and from the person's place of
employment or<br>
> education. If driving a motor vehicle is necessary to
perform the<br>
> duties of the person's employment, the court may also allow
the<br>
> person to drive in that person's scope of employment.<br>
> (l) (1) A second or subsequent violation of subdivision
(j) is<br>
> punishable by imprisonment in a county jail not exceeding
one year,<br>
> or by a fine not exceeding two thousand dollars ($2,000),
or by both<br>
> that fine and imprisonment.<br>
> (2) If the victim of a violation of subdivision (j) was
a minor at<br>
> the time of the offense, the violation is punishable by
imprisonment<br>
> in a county jail not exceeding one year, or by a fine not
exceeding<br>
> two thousand dollars ($2,000), or by both that fine and
imprisonment.<br>
><br>
><br>
<br>
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