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):
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
<http://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-show….
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=00001-0…
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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