Yo's-

Re. Eddan's & Sonja's question, "what currently legal behavior does this prohibit?"

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.

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).

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.

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):

http://www.bbc.co.uk/news/technology-17784232

http://www.wired.co.uk/news/archive/2013-02/05/revenge-porn

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.

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.)

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.

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.

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.

"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.

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.

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.

-G.

=====

On 13-10-09-Wed 11:42 AM, Sonja Trauss wrote:

I have the same q as the Forbes' author - what currently legal behavior does this prohibit?

On Wednesday, October 9, 2013, Eddan Katz wrote:

CA Senate Bill SB-255 - now §647(j)(4) as of Oct. 1 - is first 'revenge porn' law in the US.
Eric Goldman (awesome Santa Clara Law prof) has an interesting analysis on the legal implications - http://www.forbes.com/sites/ericgoldman/2013/10/08/californias-new-law-shows-its-not-easy-to-regulate-revenge-porn/.

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.

§647
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=639-653.2
> 647. Except as provided in subdivision (l), every person who
> commits any of the following acts is guilty of disorderly conduct, a
> misdemeanor:
> (a) Who solicits anyone to engage in or who engages in lewd or
> dissolute conduct in any public place or in any place open to the
> public or exposed to public view.
> (b) Who solicits or who agrees to engage in or who engages in any
> act of prostitution. A person agrees to engage in an act of
> prostitution when, with specific intent to so engage, he or she
> manifests an acceptance of an offer or solicitation to so engage,
> regardless of whether the offer or solicitation was made by a person
> who also possessed the specific intent to engage in prostitution. No
> agreement to engage in an act of prostitution shall constitute a
> violation of this subdivision unless some act, in addition to the
> agreement, is done within this state in furtherance of the commission
> of an act of prostitution by the person agreeing to engage in that
> act. As used in this subdivision, "prostitution" includes any lewd
> act between persons for money or other consideration.
> (c) Who accosts other persons in any public place or in any place
> open to the public for the purpose of begging or soliciting alms.
> (d) Who loiters in or about any toilet open to the public for the
> purpose of engaging in or soliciting any lewd or lascivious or any
> unlawful act.
> (e) Who lodges in any building, structure, vehicle, or place,
> whether public or private, without the permission of the owner or
> person entitled to the possession or in control of it.
> (f) Who is found in any public place under the influence of
> intoxicating liquor, any drug, controlled substance, toluene, or any
> combination of any intoxicating liquor, drug, controlled substance,
> or toluene, in a condition that he or she is unable to exercise care
> for his or her own safety or the safety of others, or by reason of
> his or her being under the influence of intoxicating liquor, any
> drug, controlled substance, toluene, or any combination of any
> intoxicating liquor, drug, or toluene, interferes with or obstructs
> or prevents the free use of any street, sidewalk, or other public
> way.
> (g) When a person has violated subdivision (f), a peace officer,
> if he or she is reasonably able to do so, shall place the person, or
> cause him or her to be placed, in civil protective custody. The
> person shall be taken to a facility, designated pursuant to Section
> 5170 of the Welfare and Institutions Code, for the 72-hour treatment
> and evaluation of inebriates. A peace officer may place a person in
> civil protective custody with that kind and degree of force which
> would be lawful were he or she effecting an arrest for a misdemeanor
> without a warrant. No person who has been placed in civil protective
> custody shall thereafter be subject to any criminal prosecution or
> juvenile court proceeding based on the facts giving rise to this
> placement. This subdivision shall not apply to the following persons:
> (1) Any person who is under the influence of any drug, or under
> the combined influence of intoxicating liquor and any drug.
> (2) Any person who a peace officer has probable cause to believe
> has committed any felony, or who has committed any misdemeanor in
> addition to subdivision (f).
> (3) Any person who a peace officer in good faith believes will
> attempt escape or will be unreasonably difficult for medical
> personnel to control.
> (h) Who loiters, prowls, or wanders upon the private property of
> another, at any time, without visible or lawful business with the
> owner or occupant. As used in this subdivision, "loiter" means to
> delay or linger without a lawful purpose for being on the property
> and for the purpose of committing a crime as opportunity may be
> discovered.
> (i) Who, while loitering, prowling, or wandering upon the private
> property of another, at any time, peeks in the door or window of any
> inhabited building or structure, without visible or lawful business
> with the owner or occupant.
> (j) (1) Any person who looks through a hole or opening, into, or
> otherwise views, by means of any instrumentality, including, but not
> limited to, a periscope, telescope, binoculars, camera, motion
> picture camera, camcorder, or mobile phone, the interior of a
> bedroom, bathroom, changing room, fitting room, dressing room, or
> tanning booth, or the interior of any other area in which the
> occupant has a reasonable expectation of privacy, with the intent to
> invade the privacy of a person or persons inside. This subdivision
> shall not apply to those areas of a private business used to count
> currency or other negotiable instruments.
> (2) Any person who uses a concealed camcorder, motion picture
> camera, or photographic camera of any type, to secretly videotape,
> film, photograph, or record by electronic means, another,
> identifiable person under or through the clothing being worn by that
> other person, for the purpose of viewing the body of, or the
> undergarments worn by, that other person, without the consent or
> knowledge of that other person, with the intent to arouse, appeal to,
> or gratify the lust, passions, or sexual desires of that person and
> invade the privacy of that other person, under circumstances in which
> the other person has a reasonable expectation of privacy.
> (3) (A) Any person who uses a concealed camcorder, motion picture
> camera, or photographic camera of any type, to secretly videotape,
> film, photograph, or record by electronic means, another,
> identifiable person who may be in a state of full or partial undress,
> for the purpose of viewing the body of, or the undergarments worn
> by, that other person, without the consent or knowledge of that other
> person, in the interior of a bedroom, bathroom, changing room,
> fitting room, dressing room, or tanning booth, or the interior of any
> other area in which that other person has a reasonable expectation
> of privacy, with the intent to invade the privacy of that other
> person.
> (B) Neither of the following is a defense to the crime specified
> in this paragraph:
> (i) The defendant was a cohabitant, landlord, tenant, cotenant,
> employer, employee, or business partner or associate of the victim,
> or an agent of any of these.
> (ii) The victim was not in a state of full or partial undress.
> (k) In any accusatory pleading charging a violation of subdivision
> (b), if the defendant has been once previously convicted of a
> violation of that subdivision, the previous conviction shall be
> charged in the accusatory pleading. If the previous conviction is
> found to be true by the jury, upon a jury trial, or by the court,
> upon a court trial, or is admitted by the defendant, the defendant
> shall be imprisoned in a county jail for a period of not less than 45
> days and shall not be eligible for release upon completion of
> sentence, on probation, on parole, on work furlough or work release,
> or on any other basis until he or she has served a period of not less
> than 45 days in a county jail. In all cases in which probation is
> granted, the court shall require as a condition thereof that the
> person be confined in a county jail for at least 45 days. In no event
> does the court have the power to absolve a person who violates this
> subdivision from the obligation of spending at least 45 days in
> confinement in a county jail.
> In any accusatory pleading charging a violation of subdivision
> (b), if the defendant has been previously convicted two or more times
> of a violation of that subdivision, each of these previous
> convictions shall be charged in the accusatory pleading. If two or
> more of these previous convictions are found to be true by the jury,
> upon a jury trial, or by the court, upon a court trial, or are
> admitted by the defendant, the defendant shall be imprisoned in a
> county jail for a period of not less than 90 days and shall not be
> eligible for release upon completion of sentence, on probation, on
> parole, on work furlough or work release, or on any other basis until
> he or she has served a period of not less than 90 days in a county
> jail. In all cases in which probation is granted, the court shall
> require as a condition thereof that the person be confined in a
> county jail for at least 90 days. In no event does the court have the
> power to absolve a person who violates this subdivision from the
> obligation of spending at least 90 days in confinement in a county
> jail.
> In addition to any punishment prescribed by this section, a court
> may suspend, for not more than 30 days, the privilege of the person
> to operate a motor vehicle pursuant to Section 13201.5 of the Vehicle
> Code for any violation of subdivision (b) that was committed within
> 1,000 feet of a private residence and with the use of a vehicle. In
> lieu of the suspension, the court may order a person's privilege to
> operate a motor vehicle restricted, for not more than six months, to
> necessary travel to and from the person's place of employment or
> education. If driving a motor vehicle is necessary to perform the
> duties of the person's employment, the court may also allow the
> person to drive in that person's scope of employment.
> (l) (1) A second or subsequent violation of subdivision (j) is
> punishable by imprisonment in a county jail not exceeding one year,
> or by a fine not exceeding two thousand dollars ($2,000), or by both
> that fine and imprisonment.
> (2) If the victim of a violation of subdivision (j) was a minor at
> the time of the offense, the violation is punishable by imprisonment
> in a county jail not exceeding one year, or by a fine not exceeding
> two thousand dollars ($2,000), or by both that fine and imprisonment.
>
>

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