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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