Revenge porn

March 1, 2017

 

Lindsay (not her real name) is a beautiful Oakland County twenty-something, working to make it in the modeling world. A 2014 photo shoot between herself and an aspiring photographer, where she had several nude photographs taken, were destined to remain private. While a few photos were posted of her au natural, the photographer and herself were the only two people on the planet whose eyes were destined to see the most risqué pictures. 

So she had hoped and thought. 

Sometime later in 2014, she learned an anonymous email account in her name was created. Impersonating Lindsay, someone sent an email to the photographer informing him she had lost the photos, and asking him to email them to her for her modeling portfolio.

Soon, the private photos began appearing online on revenge porn websites. Revenge porn websites are where sexually explicit images or videos made usually by an individual or a partner in an intimate relationship are used by the partner to blackmail, humiliate, intimidate or exploit the individual for breaking up with them, or to control them. They are posted on a website, often with sufficient information to identify the individual, with names, home addresses, workplaces, and links to social media profiles. The images can expose victims of revenge porn to workplace discrimination, cyberstalking, or even physical attacks. It is also termed cyber rape, and is considered a form of sexual abuse. 

Victims are harassed, traumatized, and threatened. Some victims have been so tormented they have had to change their names. 

“It's adult cyberbullying,” asserted Jody Westby, CEO of Global Cyber Risk LLC in Washington DC. “We think of cyberbullying for kids, but it's not just to children. Revenge porn is another form. It really is bullying against another human being as an adult. The best way to frame it is as cyber revenge and cyberbullying.”

Amna Osman, president and CEO of Haven, an Oakland County non-profit organization for victims of domestic abuse and sexual violence, said they are increasingly seeing victims of revenge porn coming to Haven for counseling help and assistance to combat the existence of the involuntary pornography on the websites, including mainstream social media sites.

“We have seen clients who have willingly shared intimate photos and videos with their partners, only to have the partner use it as a weapon after the relationship ended,” Osman said. “There are so many outlets for this abusive tactic – Facebook, Snapchat, etc., or even just showing pictures on your phone to others. It is a newer tactic of power and control, and we will probably see more survivors experiencing this as social media continues to grow and expand.”

Osman described one client, who had left a physically abusive relationship only to discover her ex-partner was sharing intimate pictures and videos on social media, and was trying to share them with her new partner. 

“This fit into a pattern of power and control of her ex-partner, giving him another tactic to be abusive towards her,” explained Osman.

Initially, Lindsay had no idea who could have posted these private photos of her. She had broken up with her boyfriend so long before, she didn't immediately think of him as a suspect. According to Kyle Bristow of Bristow Law in Clinton Township, who has represented about three dozen women in revenge porn lawsuits, about 10 other attorneys told Lindsay there was no way to identify a suspect on a revenge porn website. But Bristow knew better. And he helped Lindsay get the images off the internet, and get even.

“I sued John Doe as a placeholder, then acquired discovery powers and sued the photographer,” Bristow said. From there, he sent a subpoena to Google, who gave the phony email's registration to Bristow.

“When you create a Gmail account, you have to put in a cell phone number – which I got,” Bristow said. “I used instant checkmate.com to do a reverse cell phone search, which showed who the cellphone was associated with. Google also provided us with the IP address associated with the address,” which showed it was Lindsay's ex-boyfriend, a resident of Macomb County.

He then sued the ex-boyfriend, receiving a default judgement and injunctive order, meaning he must destroy all content, cannot republish it, and must remove everything published from the internet, in Oakland County Circuit Court in front of Judge Martha Anderson. Lindsay was awarded $500,000.

“She has a massive sense of relief now that the content is off the internet, and she has this judgement,” Bristow said. While she hasn't received any money yet, he said the judgement can't be discharged in bankruptcy, it accrues interest, and she can apply for a writ of garnishment, and seize money in his bank account or his tax refunds to satisfy the judgement.

Revenge porn is a new category of cyber transgressions that the law, both criminal and civil, is working to catch up with. In 2013, only two states, California and New Jersey, had laws making revenge porn illegal; by the end of 2016, 34 states and the District of Columbia – including Michigan – had created laws criminalizing the posting of nude or sexual photos or videos posted online without an individual's consent. A federal law, called the Intimate Privacy Protection Act, spearheaded by Rep. Jackie Spear of California, was introduced in 2016, would have made it a crime to distribute nonconsensual pornography. It died in the last session of Congress.

Michigan's law, passed in April 2016 after a few legislative attempts, does not go after the websites or domaines, but after the individual who posts the incriminating and non-consensual images, on a computer or other electronic device or medium of communication such as a cell phone. It is a misdemeanor, punishable by not more than 93 days in jail and or a maximum fine of $500. A second and subsequent violation would be a misdemeanor punishable by imprisonment for not more than a year and/or a maximum fine of $1,000. 

The law is very specific on what constitutes revenge porn, and how someone is targeted and vilified, with several steps needing to be met before qualifying for prosecution, including that the “person is identifiable from the sexually explicit visual material or information displayed...The person obtains the sexually explicit visual material of the other person under circumstances in which a reasonable person would know or understand...was to remain private; The person knows or reasonably should know that the other person did not consent to the dissemination of the sexually explicit visual material...'Sexually explicit visual material' means a photograph or video that depicts nudity, erotic fondling, sexual intercourse, or sadomasochistic abuse.”

Yet, while everyone recognizes that it is an act that is morally wrong, as efforts grow to combat revenge porn and the efforts to post nonconsensual pornography, civil libertarians, including the American Civil Liberties Union (ACLU) question First Amendment rights of the perpetrators.

“Our main concern is that there are other laws that can be used to deal with libel and slander. We had to look at privacy and speech, issues we care deeply about,” said Shelley Weisberg, political director, ACLU of Michigan. “This kind of revenge porn is not something we would like to see, but we have to be careful of what we criminalize. We cannot be frivolous about what free speech means. On the one hand, Americans want a free internet – on the other hand, we want privacy.”

Those who deal intimately with victims of revenge porn, also known as involuntary pornography, disagree with that stance. Their viewpoint is that victims' lives are being destroyed, and perpetrators should not be protected because it is not a civil liberties issue.

Weisberg of the ACLU said they worked with the legislature to help craft a statute that “was as constructive as possible. We did not support it; we went neutral,” she said. “We don't want to support new criminal laws unless there is a clear infringement of fundamental civil rights that cannot be addressed by existing law. (Here, there is) an unmistakably clear definition of who bears the burden of proving that a disclosure was nonconsensual.”

If the law were to only prohibit the publishing of a photo without the consent of the targeted individual, an argument could be sustained as an invasion of privacy issue, said constitutional law expert Robert Sedler of Wayne State University Law School. Arizona's revenge porn bill was struck down as unconstitutional after an ACLU lawsuit.

“If these are designed to protect a person's privacy, it should withstand a First Amendment challenge. If it is focused on the issue of targeted harm of an individual, it does not create a First Amendment issue,” Sedler said. “When it gets into broader language, then it creates a bit of a challenge constitutionally.”

Sen. Rick Jones (R-Grand Ledge), who sponsored the revenge porn legislation with Sen. Steve Bieda (D-Warren), had tried to pass this legislation the year before, and acknowledged he made the compromise to make it a misdemeanor in order to get it passed in the state House of Representatives.

Noting the importance of getting the revenge porn law passed, Jones said, “We had heard of many cases of boyfriends/girlfriends or married couples who broke up, and one person used it to control the other's behavior. I had also spoken to a law student whose life was basically ruined when an ex-boyfriend sent photos to all of her law professors and friends. She felt she couldn't go anywhere, and was afraid to apply for a job. We wanted to do something to get revenge porn fixed and stopped.”

Paul Walton, chief deputy prosecutor in the Oakland County Prosecutor's Office, said, “We may use this law, or we may not, because revenge porn is a misdemeanor, and it's terribly shocking to the victim. By the time they get to the point to contact the police and prosecute, they come in as true victims. They're humiliated. They're devastated. Then they learn it's a misdemeanor, and their ex, who did this to them, is going to walk out the same door as they are. It's terribly disheartening.”

Walton said that while they have this new law, they are still opting to bring other charges. “We may look at stalking, for example,” he said. “That can be a one-year misdemeanor, or a five-year felony. There are also some computer related charges that are five-year felonies. There is also posting through electronic means, which can include revenge porn, and that is a felony,” he said, which can result in two to five years in jail. He likes that, he said, “because it generally encompasses the same behavior, but it has an emotional component that is useful, and it goes further. We can use it together with the other charges, or with using a computer to commit a crime, which is a five-year felony. While they serve concurrently, it can influence the court in sentencing.”

Charlevoix County Prosecutor Greg Justis prosecuted a Bloomfield Hills man on a revenge porn case in 2015 against a Charlevoix County woman. The Oakland County man posted several nude photos of his former girlfriend to a revenge porn website after they broke up, and then violated a personal protection order she obtained against him in Charlevoix County. Justis said the revenge porn legislation did not exist at that time, “but clearly he did it to shame his victim, and intended to terrorize and harass.” 

The biggest problem with the revenge porn statute, according to Justis, is that it is a misdemeanor. “Revenge porn is a tool of control, to shame and harass and intimidate a victim. It is not a means of entertainment like traditional pornography. The new (Michigan) statute did not use that language,” he said. However, he acknowledged it can be useful when used in conjunction with other statutes. “Legislation like this brings great awareness and advocacy along with it. This legislation was worked on by so many people, and that's an enormously important thing. Revenge porn (statute) addresses the seriousness and the depth of violence that is violated.”

The case involving the Bloomfield Hills man ultimately did not end up going to trial in 2016, as scheduled, even though he violated the PPO again and reposted more images to another revenge porn site, Justis said, because of logistical and emotional concerns for the victim, who was then a college student, “who felt shamed and victimized. We worked out a deferral agreement with the defendant in exchange for his going to a specific counselor, and he had to complete it. We had the victim agree to this.”

While most revenge porn is posted by a former partner, it can also happen by hackers, or a computer repairman who is working on a computer and releases the images, attorney Bristow said, or “even when a new girlfriend sees it and in jealousy releases it.”

The Communications Decency Act, also known as Section 230, shields websites and service providers from liability for content posted by users, providing they are not the ones that have co-created the content. If the content doesn't violate any copyright or federal criminal laws, the sites are not obligated under Section 230 to remove the content. And ironically, an estimated 80 percent of the photos and videos posted to sites are taken by the victims themselves – in the form of selfies. 

Reputable social media sites have all become very aware of Section 230, and the potential liability it implies. “Facebook, Twitter, Instagram, they're all reputable and will readily remove content within 24 hours of notifying them that involuntary pornography has been posted,” Bristow said. Further, “if you notify Google that something is involuntary pornography, they'll often immediately remove it from their search engine.”

Removal from a search engine is critical to victims, as it removes the opportunity for internet users to continue to find the revenge porn through searches.

Bristow said he encourages victims to register their photos and videos with the federal copyright office, because copyright infringement is a federal infringement, and a suit against the perpetrators can be brought in federal court. “Then, when you sue for copyright damages, it's a criminal offense, and there are statutory offenses.”

Elisa D'Amico, founder of Cyber Civil Rights Legal Projects and a litigator with K&L Gates law firm in Miami, said if someone is not suing in federal court, a selfie doesn't need to have a copyright – it's your image, and you can request removal based on a copyright violation. If someone else took the photograph, “You can request the photographer to assign copyright notice to the individual, and they will often agree – even the perpetrator will often agree, at least they will once a lawyer gets involved. For most victims, they just want the images down.”

She recommends victims have a Google alert set up by their name, which will ping when something comes up by their name or image. “That way they can find out if their images have been copied or reposted to another website, even if they've been told it's been taken down,” noting the internet is “the gift that keeps giving.

“Pornography is supposed to be something that is enjoyable – it's not taboo anymore,” D'Amico noted. “What we're talking about isn't enjoyable. It's meant to hurt, humiliate, destroy someone else. It's also called sexual cyber harassment, sextortion, or cyber exploitation.”

Walton said that is because revenge porn “is not sexual – it's a control issue. Anytime you're trying to reach across and hurt someone physically or emotionally, it's about control. Why else would you do it?”

Many revenge porn websites are hosted outside the United States, in Somalia, Columbia, eastern Europe, or the Caribbean, and can be hard for victims to go after. Many sites permit visitors to leave comments, which tend to be sexual, crude, insulting, and vindictive, intensifying the victim's shame. A few of the sites have asked the victims for money in exchange for removing the victims – extorting them, in essence – and then failing to remove the images. 

“It's a little bit of whack a mole or cat and mouse,” acknowledged D'Amico, agreeing that all the major social media and technology companies are on board with ridding themselves of the images as soon as they're notified. “If you do something dumb as a young adult, you can't get it off, but if it's something without consent, the search engines are all onboard as improper violations.” 

Some men are even targeted for extortion, by women out of the Philippines, according to experts, where they are communicating over the internet, and are asked to take off their clothes and take a photo. The men are then extorted to send money by wire or they are told they will have the images posted where people they know can see them. D'Amico advises them to shut off their social media and not pay their extorters, who will see it as an entree to continue their extortion efforts.

“So often these revenge porn internet sites are hosted overseas; the domaines are even hosted overseas, so they're very hard to go after,” Bristow said. “An ex-boyfriend will post something onto one of these websites, and also post the victim's name, address, employer's information, and when people are victimized in this way, they're subjected to tremendous emotional torment. They can lose their job, have their career derailed because people don't want to hire them because of what's on the internet. There are safety issues because people will go after them; relationships are lost. Viewers will forward the photos to a victim's employers and family members. It's a form of trolling. And when you're on one revenge porn site, it's very common for other revenge porn sites to republish their image, so one becomes two, which becomes four, which becomes eight. One person contacted me who was on dozens and dozens of websites. It just manifests itself.”

While removing the images from websites and the internet is difficult, Bristow said it is not impossible “because there is always a money trail and a paper trail. It might take a while, but I can find them.”

D'Amico said there are forms to get the images down, even if they are difficult to navigate, which she and other attorneys familiar with the process can help victims with. “We're taking down the bridge, so we're taking down the ability for people to get there.”

Walton from the Oakland County Prosecutor’s Office emphasized that individuals “especially in affluent Oakland County, have an identity, and an online identity, and that online identity can invade their regular identity. In a digital world, the reality is that nothing is ever gone. These selfies you are putting out there, you can take them down, but they're there. Your online personality influences all aspects of your life. It's not just a digital reality when you get denied a job because of that online identity.”

A key problem for those who have been victimized by revenge porn, who are primarily women in their twenties and thirties, is that they are blamed for having taken the photographs in the first place. Another is that law enforcement often does not support them, even when there are valid laws, thereby revictimizing them.

“Victims are often blamed – 'You shouldn't have taken the photos in the first place; you shouldn't have given the photographs – even if you didn't give them,” said D'Amico. “Law enforcement would enforce better if they knew more. Some law enforcement officers literally don't know anything about revenge porn laws.”

Samantha (not her real name), 23, discovered that when she went to Chesterfield Township police after her former boyfriend of three years, “who I thought was someone I knew, that I loved,” made a sex tape of the two of them after she expressly told him she didn't want to.

“We were having sex one night (in July 2016) and he decided to film me without asking me or telling me nothing – so clearly he could not have consent,” Samantha said. “We had had multiple discussions about making a sex tape, and each time I told him I wasn't comfortable and it wasn't something I wanted to do, so he was aware I wasn't OK with it. 

“After he filmed it, he told me. I told him to delete it, and he wouldn't. He didn't show it to me. It was on his phone, and he showed me it existed.”

She said she was profoundly uncomfortable, and didn't know what to do. “I was very embarrassed. A few days later we broke up. At that time, I begged him to delete the video and he said it was gone, and I didn't have to worry about it.”

But in reality, Samantha did have a lot to worry about. She just didn't know it until Thanksgiving. Now living in the Kalamazoo area, she returned to Macomb County, and decided to stop by and visit her ex, with whom she had once again become friendly.

“I asked him if I could use his computer to play a video game,” Samantha recalled. “When I went on, I found the original video (of the sex tape), and multiple edited versions. I wasn't on his computer looking for this – I just happened on it. I confronted him about it, and I told him it was illegal because he filmed it without my consent. He said it wasn't – 'It's my video and you have no control over it.'”

She repeatedly begged him to delete the video, even trying to delete it herself from his computer, when he physically restrained her and turned off the computer.

“I thought I could reason with him. I loved him. I thought he respected me, and if I reasoned with him, he would relent and delete it,” she recalled. 

Toying with her, he told her he would delete it – but not in front of her, and that he couldn't know all of the places where it was appearing. 

Eventually, she attempted to make a police report in Chesterfield Township, but received no cooperation. Living in Kalamazoo County, she sought help there, and received assistance from a detective who took her under his wing – but ultimately, couldn't fully assist her.

“The detective said since I couldn't prove the video wasn't consensual, they couldn't prosecute it,” she said. She said the detective said her best bet was to call the ex-boyfriend and let him know he would be in serious trouble if the video got out.

“He sent the detective a video of himself deleting the video from his computer – it's in evidence,” Samantha said.

But then she discovered that rather than deleting the video, he had sent the sex tape of her out to friends via Facebook Messenger.

Still feeling a lack of responsiveness from law enforcement, she finally contacted Kyle Bristow, the attorney who helped Lindsay, who served her ex-boyfriend with papers on January 14, 2017.

“He immediately texted me, 'I'd like to talk.' I told him any communication has to go through my attorney. He's manipulative and I can't trust him,” Samantha said.

Samantha and Bristow are seeking a minimum of $25,000 in damages and an injunctive relief, where the ex-boyfriend will have to destroy the video, all copies, and never distribute any images of it again, or go to jail. 

“I want a clear message sent to him, his friends, anyone, I'm not messing around,” Samantha said. While monetary damages would be helpful – “It's embarrassing to ask family members for money to pay for an attorney for a sex tape” – what she most wants is for the sex tape, and any and all copies and images to be completely gone. 

“I want it to be over. I'm a recent college graduate; I have student loans, and I don't want this to affect my career. I've had mental health issues from this, panic attacks – it all adds up,” Samantha disclosed. “He was my first serious relationship.”

Clearly, the optimum way to combat revenge porn is to never take a nude photograph, or have one taken. But that is not reality for many people. D'Amico said a more effective outcome begins with education, to continue to teach kids how quickly information can be spread. 

“You can't tell them not to take these photos. The ones at fault aren't the ones who created the photographs, but the ones who share them or distribute them without permission,” she emphasized. “You have to stop blaming the victim, and focus on who the bad actors are.” ­

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