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Protecting Does and Outing Mobsters: Recalibrating Anonymity
Standards in Revenge Porn Proceedings
ELIZABETH BROWN
∗
I
NTRODUCTION
Nonconsensual porn, popularly known as revenge porn
1
, is becoming an
epidemic without an effective and coherent legal remedy. As its name suggests, it
is the posting or distribution of sexually explicit images without the consent of the
person purportedly represented in those images, sometimes by anonymous
sources. In recent years, both the incidence of its distribution and the severity of
its consequences have risen dramatically. A recent study suggests that one in eight
social media users has been a victim of nonconsensual porn, and that women are
1.7 times more likely to be targeted than men.
2
According to a 2016 report, one in
twenty-five U.S. residents have either been victims of nonconsensual porn or have
been threatened with posting sensitive images without their consent.
3
That
number rises to one in eight for women between the ages of 15 and 29.
4
Nonconsensual porn victims may suffer a wide range of harms, including
professional, reputational and economic harms that are often impossible to
remedy in full because the offensive images can never be permanently erased. In
November 2017, New York City passed a new nonconsensual porn law.
5
In doing
so, it joined a national trend of new regulations concerning nonconsensual porn.
6
This increase reflects a growing concern about nonconsensual porn but these new
laws do not go far enough in providing an effective recourse for its victims.
Copyright © 2018 by Elizabeth Brown
∗
Assistant Professor, Department of Law, Taxation and Financial Planning, Bentley University.
1. Professors Clare McGlynn and Erika Rackley advocate for replacing the term “revenge porn”
with the term “image-based sexual abuse.” See C
LARE MCGLYNN & ERIKA RACKLEY, SUBMISSION ON THE
ABUSIVE BEHAVIOUR AND SEXUAL HARM (SCOTLAND) BILL 2015, (ABSH 3) § 3 (Nov. 2015)
http://www.parliament.scot/parliamentarybusiness/CurrentCommittees/93304.aspx; Clare McGlynn
& Erika Rackley, Not Porn, but Abuse: Let’s Call it Image-Based Sexual Abuse, E
VERYDAY VICTIM BLAMING
(Mar. 9, 2016), http://everydayvictimblaming.com/media-complaints/not-revenge-porn-but-abuse-
lets-call-it-image-based-sexual-abuse-by-%e2%80%8fmcglynnclare-erikarackley/.
2. Nonconsensual Porn: A Common Offense, C
YBER CIVIL RIGHTS INITIATIVE (June 12,
2017),https://www.cybercivilrights.org/2017-natl-ncp-research-results/. Because women are
significantly more likely to be victims of NCP, I use the feminine pronoun when referring to NCP
victims in this article even though both men and women may be targets.
3. A
MANDA LENHART ET AL., DATA & SOC’Y RESEARCH INST., NONCONSENSUAL IMAGE SHARING:
ONE IN 25 AMERICANS HAS BEEN A VICTIM OF REVENGE PORN 3 (2016).
4. Id. at 5.
5. Sara Ashley O’Brien, Revenge Porn Will Soon Be a Crime in New York City, CNN
MONEY: TECH
(Nov. 16, 2017), http://money.cnn.com/2017/11/16/technology/nyc-revenge-porn-bill/index.html.
6. See infra notes 116–122 and accompanying text.
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156 DUKE JOURNAL OF GENDER LAW & POLICY Volume 25:155 2018
While new laws are being enacted with greater urgency at the state and local
levels, these new laws are lacking in two specific and critical ways. First, they do
too little to shield victims from the retaliation and reprisals that often accompany
nonconsensual porn claims. Victims may be unwilling to take advantage of their
new legal recourses because they may reasonably fear the additional harassment
that may result from exposing their identity and personal information. At the same
time, victims may be unwilling or unable to meet the higher burden involved in
suing anonymously, since current procedural standards for suing
pseudonymously generally require a would-be “Plaintiff Doe” to meet a higher
evidentiary standard than she would if she used her real name.
The second challenge is that many putative nonconsensual porn defendants
are anonymous, and it is more difficult and more expensive to sue defendants
whose real identity is unknown. This is partly because the procedural standards
for unmasking anonymous defendants are unreasonably cumbersome, and partly
because internet content providers (ICPs), including social media companies like
Facebook, Google, and Twitter, have little incentive to disclose users’ real
identities voluntarily. The Communications Decency Act (CDA) provides a safe
harbor for them that works against the interests of victims and law enforcement,
and should be reevaluated.
Both the challenge of hesitant plaintiffs/complainants and the challenge of
identifying anonymous defendants can be resolved by recalibrating the extent to
which anonymity is tolerated in nonconsensual porn cases. This article argues that
traditional preferences for anonymity should be reexamined in light of the
pervasive and permanent damages nonconsensual porn causes and the difficulty
of framing these damages in the strictly economic terms most familiar to courts.
Anonymity is considered a right on social media, but a privilege in the justice
system. In the context of revenge porn, it may be time to flip those standards.
This article joins a growing discussion of the wisdom of current standards for
pseudonymous plaintiffs and augments it by focusing on the unique
circumstances of revenge porn victims. It comparatively evaluates public and
private remedies in order to develop recommendations for more effective and
protective remedies for victims of nonconsensual porn, and makes three specific
recommendations. The first is to revise and standardize the conditions under
which a victim may shield her identity and personal information when alleging
nonconsensual porn, either as a plaintiff in a civil case or in a criminal prosecution
on her behalf. The second is to refine, and in some cases relax, the current
standards for compelling ICPs to disclose the names of anonymous alleged
nonconsensual porn perpetrators. The third is to expand potential liability for ICPs
when they fail to respond reasonably once they are put on notice that they may be
facilitating nonconsensual porn.
The changing nature of hiring practices and practical permanence of social
media personae should inform judicial decisions about balancing the interests of
the plaintiff, the defendant, the public, and the ICPs facilitating this harm. In light
of the weak protections current public laws and private policies offer victims of
nonconsensual porn, other options should be considered. As one scholar wrote in
another context, “[t]o preserve constitutional rights and access to justice, legal
systems must provide well-functioning mechanisms to check against
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PROTECTING DOES AND OUTING MOBSTERS 157
intimidation—especially when fear generated by past reprisals may be keeping
people out of court.”
7
In the context of nonconsensual porn, victims require more
anonymity and accused perpetrators require less. As for social media companies,
it is a relatively small but important step to require them by law to engage in the
kind of curbing efforts they have begun to take on voluntarily.
I.
THE UNIQUE PROLIFERATION AND CONSEQUENCES OF NONCONSENSUAL PORN
MANDATE RECONSIDERING PRIVACY FOR PLAINTIFFS AND DEFENDANTS
Nonconsensual porn is an often permanently damaging form of privacy
invasion that affects a growing number of internet users, more often women than
men. Under the name “revenge porn,” it has grabbed headlines in recent years. In
early 2017, the nonconsensual posting of sexually explicit photos of female
Marines without their consent on the Marines United Facebook page created a
scandal and prompted an investigation by the Pentagon.
8
Later in 2017, Rob
Kardashian posted sexually explicit photographs of his ex-girlfriend, Blac Chyna,
on Instagram, apparently in anger over her affair with another man.
9
When
Instagram took them down, Kardashian posted other nonconsensual porn images
of Chyna on Twitter.
10
Another minor celebrity, Mischa Barton, sued two men in
2017 in an effort to block their unauthorized distribution of nude photos and
videos of her.
11
Most victims of nonconsensual porn, of course, are not nearly as famous and
would prefer to keep it that way. In fact, a critical harm of nonconsensual porn is
the unwanted exposure of a victim’s identity and personal details, along with her
name, promulgated to the public at large, sent specifically to her friends, family,
and/or co-workers.
12
While headline stories involving celebrities like Kardashian and Barton
involved in nonconsensual porn litigation have brought a certain amount of
attention to the issue, legal solutions are lagging behind. The unique nature of
nonconsensual porn compared with other torts makes it necessary to reconsider
the unreasonably high burden courts have placed both on plaintiffs who want to
sue pseudonymously and plaintiffs who try to unmask anonymous defendants in
the context of nonconsensual porn claims.
7. Benjamin P. Edwards, When Fear Rules in Law’s Place: Pseudonymous Litigation as a Response to
Systematic Intimidation, 20 V
A. J. SOC. POL’Y & L. 437, 440 (2013).
8. Bill Chappell, Sharing of Nude Photos of Female Marines Online Prompts Pentagon Investigation,
NPR:
THE TWO-WAY (Mar. 6, 2017, 8:10 AM), http://www.npr.org/sections/thetwoway/2017/03/06/5187
67235/sharing-of-nude-photos-of-female-marines-prompts-pentagon-investigation.
9. Edgar Alvarez, Rob Kardashian’s Revenge Porn is Social Media’s Latest Headache, E
NGADGET (July
11, 2017), https://www.engadget.com/2017/07/11/rob-kardashian-blac-chyna-revenge-porn/.
10. Id.
11. Mischa Barton Reaches Settlement in Revenge-Porn Case, CBS
LOS ANGELES (June 5, 2017, 4:19
PM), http://losangeles.cbslocal.com/2017/06/05/mischa-barton-revenge-porn/.
12. See infra notes 17–26 and accompanying text.
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158 DUKE JOURNAL OF GENDER LAW & POLICY Volume 25:155 2018
A. Nonconsensual Pornography Is Increasingly Pervasive
Nonconsensual porn is a form of digital sexual harassment and a
turbocharged invasion of physical and sexual privacy.
13
It is sometimes defined as
a sex crime and sometimes as a basis for civil liability.
14
Nonconsensual porn is
generally defined as the distribution of images of a fully or partially naked person,
purporting to be of the victim without the victim’s consent, without necessarily
having a specific motivation to harm.
15
Revenge porn differs from nonconsensual
porn, in that it assumes a motive to harass, disturb, or otherwise intentionally
harm the victim.
16
In one manifestation of nonconsensual porn, sexually explicit photos of a
victim are distributed without the victim’s consent, sometimes to the victim’s
friends, family, and co-workers.
17
In some cases, the photos were taken privately,
or were derived from webcams switched on without the subject’s knowledge.
18
In
other cases, the images are created by photoshopping a victim’s head onto
someone else’s nude body, and the photo purports to be a naked image of the
victim.
19
One of the most damaging aspects of nonconsensual porn cases is the
frequency with which personal information such as home and email addresses are
posted alongside the nude images. This practice, called doxing or doxxing, is a
common feature in nonconsensual porn. According to one source, personal
identifying information is posted with nonconsensual porn images nearly sixty
percent of the time.
20
The nonconsensual porn images pop up in internet searches
of the victim’s name, sometimes causing victims to lose their jobs or to have
difficulty applying for jobs because of the results that come up when employers or
potential employers search for their names online.
21
Nonconsensual porn images can spread across the internet easily. A poster
can disseminate an image instantaneously, and that image may dominate search
engine results for the victim within days.
22
This is exacerbated by thousands of
13. See Adrienne N. Kitchen, Note, The Need to Criminalize Revenge Porn: How a Law Protecting
Victims Can Avoid Running Afoul of the First Amendment, 90 C
HI.-KENT L. REV. 247, 292 (2015).
14. See Charlotte Alter, ‘It’s Like Having an Incurable Disease’: Inside the Fight Against Revenge Porn,
T
IME: SOCIETY (June 13, 2017), http://time.com/4811561/revenge-porn/.
15. See Nonconsensual Porn: A Common Offense supra note 2.
16. Alter, supra note 14.
17. Id.
18. Id.
19. There is, effectively, a minor industry in photoshopping one person’s head onto another
person’s naked body, including for the purposes of revenge porn. See Kashmira Gander, The People Who
Photoshop Friends and Family Onto Porn, I
NDEPENDENT: INDY/LOVE (Oct. 13, 2016, 9:30 AM)
http://www.independent.co.uk/life-style/love-sex/porn-photoshopping-4chan-family-friends-
superimposed-into-sex-scenes-world-a7358706.html.
20. What Makes an Effective Revenge Porn Law?, C.A.G
OLDBERG, http://www.cagoldberglaw.com
/what-makes-an-effective-revenge-porn-law/ (last visited Jan. 16, 2018).
21. Lorelei Laird, Victims Are Taking on ‘Revenge Porn’ Websites For Posting Photos They Didn’t
Consent To, ABA
JOURNAL (Nov. 2013), http://www.abajournal.com/magazine/article/victims_are_
taking_on_revenge_porn_websites_for_posting_photos_they_didnt_c.
22. M
ARY ANNE FRANKS, CYBER CIVIL RIGHTS INITIATIVE, DRAFTING AN EFFECTIVE “REVENGE
PORN” LAW: A GUIDE FOR LEGISLATORS2 (Aug. 2015) https://www.cybercivilrights.org/wp-
content/uploads/2016/09/Guide-for-Legislators-9.16.pdf.
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PROTECTING DOES AND OUTING MOBSTERS 159
websites which are dedicated to revenge porn.
23
The images are further spread by
what some scholars have called an “amplification effect,” in which mobs of people
compete with each other to see who can create the most damaging images or other
harassment of the victim.
24
The “amplification effect” refers to the subsequent
reposting and sharing of the initial post, which is often done by groups competing
“to outdo each other” and “be the most offensive, the most abusive.”
25
As a result
of this competition, the initial post quickly spreads in reach and grows in offensive
content, with subsequent posters adding sexual slurs and personal information
about the victim. The number of viewers increases exponentially as it spreads. The
victim typically only has a legal remedy against the initial poster, and not against
the legion of re-posters.
26
Internet archiving makes this worse, in that the harmful
images and comments can stay online, and come up in searches, indefinitely.
Victims of nonconsensual porn often have no definitive measure of how widely
their private images have spread.
Internet content providers, including social media sites such as Facebook, are
struggling to deal with the viral spread of revenge porn. Documents leaked to the
media suggested that Facebook had to assess almost 54,000 cases of reported
revenge porn in a single month.
27
Because Facebook relies on user reports to flag
instances of revenge porn, the number of potential revenge porn postings could
be higher.
28
Facebook is trying to prevent users from posting some explicit content
by using “image-matching” software, but claims to have trouble distinguishing
between acceptable and unacceptable material.
29
Facebook is also adapting new
and somewhat controversial technologies for flagging and removing
nonconsensual porn.
30
The private nature, irreversible harms and online amplification of
nonconsensual porn make it unlike other crimes. Kara Jefts, an academic and art
historian at a Chicago university, became a victim of nonconsensual porn when
she ended a long-term relationship with a boyfriend.
31
Soon after the split, he
posted sexually explicit images taken from their Skype conversations online to
Facebook, together with violent threats against Jefts.
32
These images were emailed
to Jefts’ friends and family and uploaded to websites aimed at exposing the
sexually transmitted diseases of individuals, with misinformation about Jefts’
23. Id.(noting that as many as 3,000 websites feature revenge porn); Dylan Love, It Will Be Hard to
Stop the Rise of Revenge Porn, B
USINESS INSIDER AUSTRALIA: TECH INSIDER (Feb. 8, 2013, 11:00 am)
https://www.businessinsider.com.au/revenge-porn-2013-2.
24. Apeksha Vora, Note, Into the Shadows: Examining Judicial Language in Revenge Porn Cases, 18
GEO. J. GENDER & L. 229, 230 (2017).
25. Id.
26. Id.at 231.
27. Nick Hopkins & Olivia Solon, Facebook Flooded With ‘Sextortion’ and ‘Revenge Porn’, Files Reveal,
T
HE GUARDIAN (May 22, 2017, 9:52 AM), https://www.theguardian.com/news/2017/may/22/facebook-
flooded-with-sextortion-and-revenge-porn-files-reveal.
28. Id.
29. Id.
30. See discussion infra Section IV(B).
31. Alter, supra note 14.
32. Id.
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160 DUKE JOURNAL OF GENDER LAW & POLICY Volume 25:155 2018
sexual past.
33
Internet searches of Jefts’ name were subsequently dominated by
information about Jefts’ status as a victim, causing irreversible damage to her
personal and professional reputation.
34
“I have to accept at this point that it’s
going to continue to follow me,” she told Time magazine.
35
“It’s kind of like having
an incurable disease.”
36
Nonconsensual porn is one of many harms perpetuated in part by the online
environment. More than ninety percent of internet users agree that there is
something about the online environment that allows people to be more critical of
each other,
37
often in dangerous ways. According to a study by the Pew Research
Center, a full seventy-three percent of adults have seen someone else be harassed
online and forty percent have experienced harassment online themselves.
38
Of
course, not all harassment is equally severe. The study differentiated between less
severe harassment, which includes name-calling and more common annoying
behaviors, and more severe harassment, which includes physical threats,
sustained harassment over time, and sexual harassment.
39
Of those who had been
harassed online, the survey found that forty-five percent of them, or eighteen
percent of all internet users, experienced the more severe form of harassment.
40
Young women between the ages of 18 and 24 experience stalking and online
sexual harassment at “disproportionately high levels,” according to the study.
41
Of
these women, twenty-six percent report having been stalked, twenty-five percent
report having been sexually harassed, and twenty-three percent of them reported
having been physically threatened.
42
Social media is a particularly risky
environment in this context. Two-thirds of internet users surveyed said that their
most recent incidence of harassment occurred on a social networking website or
app.
43
Similarly, women are more vulnerable to the use of nonconsensual porn than
men. Estimates of the percentage of revenge porn victims who are female range
from sixty to seventy percent, on the low end, to more than ninety percent.
44
In the
first nationwide study of nonconsensual porn, women were “significantly more
likely” (about 1.7 times as likely) to have been subject to nonconsensual
33. Id.
34. Id. An internet search of “Kara Jefts” conducted on November 16, 2017 returned information
about Ms. Jefts’ experience as a victim of revenge porn as well as professional information about her.
35. Id.
36. Id.
37. P
EW RESEARCH CENTER: INTERNET & TECH REPORT, ONLINE HARASSMENT 8 (Oct. 22, 2014),
http://assets.pewresearch.org/wp-content/uploads/sites/14/2014/10/PI_OnlineHarassment_72815.pdf.
38. Id. at 2.
39. Id.
40. Id.
41. Id. at 3.
42. Id.at 3–4.
43. P
EW RESEARCH CENTER, supra note 37, at 5–6. The survey distinguished social media websites
and apps from dating websites and apps.
44. See, e.g., Eaton, infra note 45, at 13 (noting that women are 1.5 times more likely to report being
victims than men), Citron, infra note 55, at 17 (noting a study finding that ninety percent of victims
were women).
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PROTECTING DOES AND OUTING MOBSTERS 161
distribution of their naked images or threatened with such distribution than men.
45
Nearly sixteen percent of all women participating in the study reported having
been victimized or threatened, compared with just over nine percent of men.
46
Women were even more likely than men to experience threats of nonconsensual
porn distribution than men, with 6.6% of women reporting threats compared with
only 2.6% of men.
47
While attracting scholarly attention, nonconsensual porn is also subject to the
subtle marginalization of crimes with predominantly female victims. “The
trivialization of women’s harms is not new,” writes Apeksha Vora in an article
examining what she describes as the trivializing languages judges use to describe
the harm in revenge porn opinions.
48
“[S]ociety often discounts harms that
disproportionately affect women, as is seen most clearly in the historical treatment
of rape, domestic violence, and sexual harassment in the workplace.”
49
Given the
popular misconception that there is a right to be anonymous on the internet, the
concerns of nonconsensual porn victims may suffer even more in comparison.
In addition to the psychological, economic, and professional damages
individual victims suffer, nonconsensual porn also hurts society. When the victims
are people who already feel marginalized by social discourse, being harassed
online makes them even less likely to participate in online dialogues. At least one
study suggests that women, people of color, lesbians, gays and bisexuals already
are more likely to censor themselves online than heterosexual white men because
they have a greater fear of consequent online harassment.
50
As a result, social
discourse overall becomes less diverse and skews in favor of those who feel more
powerful and privileged. This is a serious loss, although the impact is difficult to
quantify. Limiting the scope of people who feel able to participate fully in social
discourse risks creating a segment of the population that is “chronically dogged
by a spoiled social identity, and a much larger class of people who know that they
could be subjected to such treatment without hope of redress.”
51
This outcome
would run “directly afoul of the ideal of a regime that allows for confidence,
empowerment, and agency in the forum of public debate.”
52
The consequences of
nonconsensual porn, therefore, are dangerous for a free and open society as a
whole.
45. ASIA A. EATON ET AL., CYBER CIVIL RIGHTS INITIATIVE, 2017 NATIONWIDE ONLINE STUDY OF
NONCONSENSUAL PORN VICTIMIZATION AND PERPETRATION 12 (2017), https://www.cybercivilrights.
org/wp-content/uploads/2017/06/CCRI-2017-Research-Report.pdf.
46. Id.
47. Id. at 14.
48. Vora, supra note 24, at 248.
49. Id.
50. A
MANDA LENHART ET AL., DATA & SOC’Y RESEARCH INST.ONLINE HARASSMENT, DIGITAL
ABUSE AND CYBERSTALKING IN AMERICA 53 (Nov. 21, 2016).
51. Andrew Koppelman, Revenge Pornography and First Amendment Exceptions, 65 E
MORY L.J. 661,
663 (2016).
52. Ashton Cooke, Note, The Right to Post: How North Carolina’s Revenge Porn Statute Can Escape
Running Afoul of the First Amendment Post-Bishop, 15 F
IRST AMEND. L. REV. 472, 484 (2017).
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B. Revenge Porn Causes Extensive and Often Irremediable Damages
The harm inflicted by the viral spread of nonconsensual porn may include
psychological, economic and reputational damages that are qualitatively different
from traditional tort damages, particularly in their permanence. These damages
may surprise legal scholars unfamiliar with the unique dynamics of
nonconsensual porn. In fact, the intractability of harm caused by nonconsensual
porn would be all but unrecognizable to tort law commentators in the mid-
twentieth century. Now, approximately seventy-five percent of all Americans use
the internet.
53
As more social and economic aspects of our lives move online, the
potential damage caused by these kinds of online comments and postings becomes
more extreme and inescapable.
Nonconsensual porn in particular can cause damage that is severe, pervasive,
and often nearly impossible to remedy completely. Victims are “frequently
threatened with sexual assault, stalked, harassed, fired from jobs, and forced to
change schools.”
54
False comments, doctored images, and images distributed
without consent can make victims feel powerless and depressed. Some receive
death threats. Others are forced to relocate.
55
In one example, a victim who wanted to remain anonymous reported that she
began to suffer the effects of nonconsensual porn posted by her ex-husband, whom
she divorced in 2009.
56
Three years later, she was working for a Fortune 500
company when she started receiving hundreds of text messages and friend
requests from people she did not know.
57
She alleges that her ex-husband posted
an intimate photo he took of her on their wedding night on a public forum together
with pictures of her daughter, her workplace, and her email address.
58
Men began
to call her on her company’s customer service line, trying to extort money and
threatening her family.
59
She spent $7,500 in an effort to remove the pictures, but
they were continually reposted on different websites.
60
The FBI were unable to
help her effectively until her state passed a nonconsensual porn law in 2015, under
which her ex-husband was arrested, pleaded guilty, and was sentenced to prison
time.
61
Despite his conviction, she still received harassing messages from strangers
on Facebook.
62
Negative online comments and images can have devastating professional
consequences. This is increasingly so, given that employers regularly conduct
53. Internet Users (per 100 People), UNDATA, http://data.un.org/Data.aspx?d=WDI&f=Indicator_
Code%3aIT.NET.USER.P2%3bCountry_Code%3aUSA&c=2,4,5&s=Country_Name:asc,Year:desc&v=1
(last visited Feb. 10, 2018).
54. Franks, supra note 22, at 2.
55. D
ANIELLE KEATS CITRON, HATE CRIMES IN CYBERSPACE 6-7 (2014) [hereinafter CITRON, HATE].
56. Kaitlin Rust, “Revenge Porn” Victim Speaks Out After Ex-husband Is Convicted, KPLC
(Dec. 11,
2017), http://www.kplctv.com/story/37042582/revenge-porn-victim-speaks-out-after-ex-husband-is-
convicted.
57. Id.
58. Id.
59. Id.
60. Rust, supra note 56.
61. Id.
62. Id.
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PROTECTING DOES AND OUTING MOBSTERS 163
online searches and social media audits before extending interview and job
offers.
63
Revenge porn victims report losing their jobs when their employers see
the images posted and losing job opportunities when potential employers see
these images. In complaints to the FTC, victims alleged that their employers
received phone calls alerting them to where the victims’ photographs were posted
online.
64
Other victims despaired that the nonconsensual porn images were the
first results that came up in Google searches of their names.
65
The reputational damage caused by online speech can have serious
consequences beyond the professional realm. According to a 2014 study, one-third
of victims of the more severe forms of online harassment believe that their
reputation has been damaged as a result of that harassment.
66
C. Victims Cannot Fix, Forget or Fight Online Harassment
Nonconsensual porn victims have limited resources outside of the legal
system. In the United States, there is no statutory “right to forget” as there is in
many European countries.
67
Some victims seek help from advocacy organizations
such as the Cyber Civil Rights Initiative, which receives between twenty and thirty
such requests every month.
68
In general, victims have three options: fix it, forget it,
or fight it. As described below, none of these is truly satisfactory, but there are
ways to make at least one of them more effective.
A nonconsensual porn victim’s first option is to try to fix the problem,
primarily by removing the offending images and information from the internet.
Reputation management companies offer to help, for a fee, by using search engine
optimization that pushes positive content about a person to the top of a search
result and therefore makes it less likely that negative results will come up quickly.
One such company, Reputation Defender, offers packages that range in price
between $3,000 and $25,000 for the basic service level.
69
Reputation management companies have reputation problems of their own,
however. Some victims of nonconsensual porn will hesitate to use them in light
of a widely publicized scheme involving a firm called Change My Reputation.
70
This firm was run by Kevin Bollaert, who simultaneously operated a revenge porn
site called UGotPosted.com.
71
When victims complained about their images on
63. CITRON, HATE, supra note 5, at 7-9.
64. Complaint for Permanent Injunction and Other Equitable Relief at 15, Fed. Trade Comm’n v.
EMP Media, Inc., No. 2:18-cv-00035 (D. Nev. Jan. 9, 2018) https://www.ftc.gov/system/files/documents/
cases/1623052_myex_complaint_1-9-18.pdf.
65. Id.
66. P
EW RESEARCH CENTER, supra note 7, at 7.
67. Jeff John Roberts, The Right To Be Forgotten From Google? Forget It, Says U.S. Crowd, F
ORTUNE:
TECH (Mar. 12, 2015), http://fortune.com/2015/03/12/the-right-to-be-forgotten-from-google-forget-it-
says-u-s-crowd/.
68. Franks, supra note 22, at 2.
69. Personal Online Reputation Management, R
EPUTATION DEFENDER, https://www.reputation
defender.com/reputation (last visited Feb. 10, 2018).
70. Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 W
AKE FOREST L.
REV. 345, 368–69 (2014).
71. Id. at 368.
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164 DUKE JOURNAL OF GENDER LAW & POLICY Volume 25:155 2018
UGotPosted, Bollaert directed them to Change My Reputation, which then
charged the victims between $250 and $350 to remove their images.
72
Bollaert and
his colleague were later ordered to pay one victim $385,000 in compensatory and
punitive damages.
73
In another more recent example, the FTC investigated a
website called MyEx.com, which solicited pictures, videos and personal
information of victims and urged visitors to “Submit Pics and Stories of Your Ex.”
74
The site then allegedly charged several victims between $500 and $2,800 to remove
their images and information.
75
A second option is for nonconsensual porn victims to try to forget what has
been done to them and avoid the images altogether. Revenge porn, however, is
usually inescapable. It is not practical for a victim to simply stay off social media
because of its ubiquity in modern life. The mob mentality of nonconsensual porn
promoters makes it likely that offending images will spread rather than
evaporating. The popularity of websites dedicated to revenge porn, such as
UGotPosted and MyEx, contributes to this phenomenon. Even if it were feasible
for victims to stay offline, the larger consequence may be the departure of
primarily young females and other members of marginalized groups from the
realm of online discussions, an outcome which is neither socially desirable nor
particularly just.
76
A third option is for victims to fight back. Given our legal system’s preference
for open fora, one traditional response to the notion that hate speech can cause
harm has been to observe that more speech can counter it.
77
As Justice Louis
Brandeis wrote in a 1927 case concerning the extent to which certain speech posed
a threat to society, “the remedy to be applied is more speech, not enforced
silence.”
78
But this is not feasible in the context of revenge porn. Revenge porn
victims cannot meet their harassers with equal and opposite force. A woman
whose naked image has been disseminated across the internet faces social,
economic, and professional repercussions that may last for years. A girl who faces
online harassment usually cannot fight back with equal and opposing harassment,
even if we would want her to as a matter of social policy, especially if she has no
idea who harassed her in the first place. More speech does not help a woman
whose home address has been disclosed, or one whose children’s names and
schools have been broadcast alongside private images of her. The victims’ inability
to counter their harassment with more speech is especially great when their
harassers’ identity is unknown.
72. ‘Revenge Porn’ Site Ordered to Pay Ohio Woman $385,000, NBC NEWS (Mar. 19, 2014 9:42 PM),
http://www.nbcnews.com/news/us-news/revenge-porn-site-ordered-pay-ohio-woman-385-000-
n57276.
73. Id.
74. FTC and Nevada Seek to Halt Revenge Porn Site, F
ED. TRADE COMM’N (Jan. 9, 2018),
https://www.ftc.gov/news-events/press-releases/2018/01/ftc-nevada-seek-halt-revenge-porn-site.
75. Id.
76. Alice Marwick, A New Study Suggests Online Harassment is Pressuring Women and Minorities to
Self-Censor, Q
UARTZ (Nov. 24, 2016), https://qz.com/844319/a-new-study-suggests-online-harassment-
is-pressuring-women-and-minorities-to-self-censor/.
77. See, e.g., Franklyn Haiman, The Remedy Is More Speech, A
MERICAN PROSPECT (Summer 1991),
http://prospect.org/article/remedy-more-speech.
78. Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
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PROTECTING DOES AND OUTING MOBSTERS 165
The unique nature of nonconsensual porn’s viral spread, permanence, and
harm requires a unique legislative and procedural approach. At a minimum, it is
necessary for scholars and legislators to reconsider whether our traditional
assumptions about anonymity should be challenged in this context. Civil plaintiffs
and criminal complainants are required or strongly encouraged to disclose their
identities, while people accused of civil violations or criminal acts enjoy more
anonymity and protection from unmasking. It may be sensible to moderate both
of those presumptions in the context of nonconsensual porn.
II.
NONCONSENSUAL PORN VICTIMS NEED GREATER PRIVACY FOR FULL ACCESS TO
JUSTICE
Anonymity affects nonconsensual porn victims and perpetrators in opposite
ways. Anonymity is, to some extent, a right protected by the First Amendment.
The Supreme Court has recognized the right to speak anonymously as part of the
right of free speech.
79
Anonymity in judicial proceedings, however, is subject to a
complex and variable set of rules, as described below. In the context of remedying
nonconsensual porn harms, this article is primarily concerned with two kinds of
anonymity issues: suing pseudonymously, also known as suing as “Plaintiff Doe,”
and uncovering the identity of an anonymous defendant. There is no uniform
federal standard for suing under a pseudonym, nor is there a uniform federal
standard for unmasking an anonymous source of alleged nonconsensual porn.
The complexity of rules surrounding each aspect of nonconsensual porn litigation
exacerbates the difficulty of bringing alleged nonconsensual porn tortfeasors and
criminals to justice.
Effectively limiting nonconsensual porn requires consideration of two
changes. The first is to make it safer for victims who fear retaliation to use both the
civil and criminal channels of the legal system by allowing them to proceed
without disclosing their true identity. The second is to make it easier to identify
anonymous perpetrators of nonconsensual porn, a remedy that may require the
participation of ICPs. The first of these suggestions is explored here in Section II,
and the second follows in Section III.
A. Nonconsensual Porn Victims Face Significant Difficulties in Securing Legal
Rights
In the context of nonconsensual porn, anonymity works for the accused and
against the accuser. Current standards make it all but impossible for a victim of
anonymous online harassment to take a legal stand against harassers that she
cannot identify. Anonymity online offers a cloak of protection for nonconsensual
porn perpetrators because there is relatively little risk that their identity will be
disclosed and that they will therefore be subject to criminal or civil liability.
79. See, e.g., Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. Of Stratton, 536 U.S. 150, 166–67
(2002) (finding that a law requiring a permit to distribute pamphlets door-to-door was unconstitutional
because it infringed on the speaker’s First Amendment rights); McIntyre v. Ohio Elections Comm’n,
514 U.S. 334, 341–42 (1995) (“[T]he anonymity of an author is not ordinarily a sufficient reason to
exclude her work product from the protections of the First Amendment.”).
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No such protection is available to victims of nonconsensual porn in most
cases. A limiting factor in curbing nonconsensual porn is the reluctance of victims
to come forward, often because they fear further retaliation. This fear is reasonable,
given the mob mentality encouraged by many of the websites dedicated to revenge
porn, and the increasingly common practice of competing to see who can hound
victims most effectively.
80
One measure that might pave the way for more legal challenges to online
harassment would be to relax the requirements for filing a lawsuit
pseudonymously. Being able to remain anonymous might make it easier for
victims of severe online harassment to sue their attackers. Online harassment
victims may hesitate to sue their attackers in part because they do not want to
suffer from the increased attention, and potentially increased harassment, that
comes with filing a lawsuit. Many victims of nonconsensual porn are too ashamed
to come forward, or reluctant to admit that sexually explicit photos were taken of
them under any circumstances, even though the practice of sending nude pictures
is increasingly common, especially among young women.
81
According to one
survey, thirty-seven percent of teenage girls say that they have sent nude or semi-
nude photos by text, email or IM, while fifty-six percent of women age 20-26 say
that they have done so.
82
A key limitation of these theories is the understandable hesitation of
nonconsensual porn victims to expose themselves to the mob exacerbation and
doxxing that usually accompany publicized examples of nonconsensual porn. As
discussed below, the standards for pleading under a pseudonym in civil cases vary
widely and often impose dauntingly high burdens of proof for the applicant in
comparison with named plaintiffs. Although most states have enacted
nonconsensual porn-specific laws within the last several years, few of them
provide the kinds of anonymous pleading provisions that would make it easier for
nonconsensual porn victims either to file civil lawsuits on their own or to become
victim-witnesses in criminal prosecutions under those laws.
B. Putative Doe Plaintiffs Face Variable Pleading Standards
Nonconsensual porn victims have been able to use various traditional legal
claims to address this nontraditional harm, at least in theory. Scholars have
suggested the expanded use of largely tort-based remedies, including claims for
invasion of privacy, as well as copyright infringement.
83
While the First
Amendment protects against government regulation of some speech, not all
speech is protected to the same extent. Unlawful surveillance, cyber-stalking,
child pornography (if the subject is under 18) and hacking (if the images were
taken using the subject’s phone or computer without consent) all may be potential
bases of liability in cases like these.
84
The definitions of cyber-harassment and
80. Vora, supra note 24, at 230–31.
81. Sexting Statistics, S
TATISTIC BRAIN, http://www.statisticbrain.com/sexting-statistics/ (last
visited Jan. 16, 2018).
82. Id.
83. See Scott D. Camassar, Cyberbullying and the Law: An Overview of Civil Remedies, 22 A
LB. L.J. SCI.
& TECH. 567 (2012).
84. Related Laws, C
YBER CIVIL RIGHTS INITIATIVE, https://www.cybercivilrights.org/related-laws/
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PROTECTING DOES AND OUTING MOBSTERS 167
cyber-stalking vary from state to state, however, as do the accompanying
standards for determining the accused’s intent.
85
Another legal basis for combating nonconsensual porn may be an increase in
the penalties associated with civil rights violations or hate speech in certain cases.
These enhanced penalties could attach to speech that (1) causes or is likely to cause
certain kinds of harm, or (2) targets religious and/or sexual identity. In a 2014 book,
Danielle Citron argued that because online harassment targets women and
minorities disproportionately and limits their freedom of self-expression,
employment prospects and personal safety, it should be treated as a civil rights
violation.
86
Her idea of scaling penalties up based on the targets of the speech, in
addition to the contents of the speech, is sensible. Such a legislative revision would
take into account the realities of online harassment’s effects on people who have
historically suffered from hatred, bigotry and misogyny. The amplification effects
of nonconsensual porn, which give harassers vastly more firepower as well as
mobs of co-harassers, suggest that it is fair to increase penalties where the speech
is directed at historically disempowered people.
These theoretical bases of liability may provide little relief in practice,
however, if the victims cannot identify their attacker and if the victims feel unsafe
themselves in asserting their claims. It is not easy to file a civil lawsuit asserting
claims under any of these theories without disclosing the plaintiff’s identity. The
Federal Rules of Civil Procedure do not allow it presumptively; Rule 10(a) requires
disclosure of the plaintiff’s identity.
87
Many states have laws of procedure that
mirror Rule 10(a).
88
A tradition in favor of open judicial proceedings, and therefore
implicitly opposed to anonymous pleading, dates back to 15
th
century England.
89
Filing a lawsuit under a false name requires judicial approval, and cannot be
done as of right.
90
Every federal court requires judicial consent after consideration
of several factors.
91
There is no uniform standard across circuits, however, and the
standards for such consent vary considerably.
There is a strong judicial presumption that parties will use their real names
in litigation, as required by Rule 10(a). One reason offered for this presumption is
the idea that disclosing litigants’ identities “furthers the public interest in knowing
the facts surrounding judicial proceedings.”
92
As another scholar put it, the right
to proceed anonymously is disfavored because of the “shield and veil it creates
(last visited Jan. 16, 2018).
85. Online Harassment & Cyberstalking, P
RIVACY RIGHTS CLEARINGHOUSE, https://www.privacy
rights.org/consumer-guides/online-harassment-cyberstalking (last visted Mar. 27, 2018)..
86. C
ITRON, HATE, supra note 55.
87. F
ED. R. CIV. P. 10(a) (requiring that all parties to a civil action be named in the complaint).
88. See, e.g., A
LASKA R. CIV. P. 10(a); ARK. R. CIV. P. 10(a); OHIO R. CIV. P. 10(a); S.C. R. CIV. P. 10(a).
89. David C. Scileppi, Note, Anonymous Corporate Defamation Plaintiffs: Trampling the First
Amendment or Protecting the Rights of Litigants?, 54 F
LA. L. REV. 333, 337–38 (2002).
90. Nat’l Ass’n of Waterfront Employers v. Chao, 587 F. Supp. 2d 90, 99 (D.D.C. 2008).
91. The legal standards are discussed in Section 0 infra.
92. See, e.g., Nat’l Ass’n of Waterfront Employers, 587 F. Supp. 2d at 99; see also Doe v. Vill. of
Deerfield, 819 F.3d 372, 376–77 (7th Cir. 2016) (stating that the public has a right to know the names of
litigants who take up time, space, and money in the court system that the public is paying for).
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168 DUKE JOURNAL OF GENDER LAW & POLICY Volume 25:155 2018
between the court and the public.”
93
Some courts justify the requirements of Rule
10(a) by reference to the public’s interest in open trials because it requires plaintiffs
to “name all the parties.”
94
While the Supreme Court has acknowledged that there
are circumstances in which the general interest in judicial openness is outweighed
by other interests, it has noted that those instances are rare.
95
In response, however, some scholars have pointed out that the public interest
in open trials is not undermined by allowing plaintiffs to proceed under a
pseudonym. As Professor Kessler observed, “[i]t is the rare case today in which
the public cannot realize the full benefits of an open trial without knowing the
plaintiff’s name” because salient elements of the plaintiff’s identity are widely
available through electronic databases.
96
Professor Edwards has also suggested
that pseudonymous proceedings actually may make trials fairer because it is less
likely in those cases that the jurors will be able to search the internet for, and be
influenced by, information that is not presented at trial.
97
In certain types of cases, however, more leeway is granted to plaintiffs who
want to proceed anonymously.
98
Courts usually grant requests to proceed
anonymously to victims in cases involving sexual assault.
99
Anonymity is also
often granted in cases involving minors.
100
93. Chloe Booth, Good Things Don’t Come to Those Forced to Wait: Denial of a Litigant’s Request to
Proceed Anonymously Can be Appealed Prior to Final Judgment in the Wake of Doe v. Village of Deerfield,
58 B.C.L. Rev. E. Supp. 205, 211–12 (2017).
94. F
ED. R. CIV. P. 10(a); see Doe v. Del Rio, 241 F.R.D. 154, 156 (S.D.N.Y. 2006) (stating that Rule
10(a) “has constitutional overtones” related to the public interest in open proceedings). But Professor
Carol M. Rice disputes whether Rule 10(a) has any direct connection to the policy goals advanced by
open judicial proceedings. She argues that Rule 10(a)’s pleading requirements are not designed to
preserve open courts or to bar pseudonymous pleading, and contends that “Rule 10(a) simply seeks to
distinguish the more formal caption in the complaint from all others, which for economy
need not list every party,” and that “Rule 10(a) does not necessarily dictate the substance of the name
designation.”
Carol M. Rice, Meet John Doe: It Is Time for Federal Civil Procedure to Recognize John Doe Parties, 57 U.
PITT.
L. REV. 883, 915 (1996).
95. See Globe Newspaper Co. v. Superior Ct. for Norfolk Cty., 457 U.S. 596, 606 (1982) (stating
that the circumstances under which proceedings in a criminal trial should not be shared with the public
are limited).
96. Jayne Kessler, Privacy, Plaintiff, and Pseudonyms: The Anonymous Doe Plaintiff in the Information
Age, 53 K
ANSAS L. REV. 195, 218 (2004).
97. Edwards, supra note 7, at 445.
98. See Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997) (giving
examples of types of cases, such as those that require privacy protections for rape victims and other
vulnerable parties, that warrant a party to a litigation to proceed anonymously); Doe v. City of Chicago,
360 F.3d 667, 669 (7th Cir. 2004) (adding that a party’s fear of retaliation as a response for instituting a
litigation can be a compelling reason for the court to allow the party to proceed anonymously).
99. See, e.g., Roe v. Borup, 500 F. Supp. 127, 130 (E.D. Wis. 1980) (allowing anonymity in a case
involving false claims of child sexual abuse to curb plaintiff’s future psychological harm); Doe v. Howe,
607 S.E.2d 354, 357 (S.C. Ct. App. 2004) (allowing plaintiff who was sexually abused by a school
employee to use a pseudonym).
100. See, e.g., Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981) (allowing anonymity for plaintiffs
who challenged constitutionality of prayer and bible readings in a public school because of real
threatened violence and retaliation against their children); see also Lisa M. Jones et al., Protecting
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PROTECTING DOES AND OUTING MOBSTERS 169
Following this presumption, courts generally permit pseudonymous
litigation “only in those exceptional cases involving matters of a highly sensitive
and personal nature, real danger of physical harm, or where the injury litigated
against would be incurred as a result of the disclosure of the plaintiff’s identity.”
101
Using a false name is not allowed “where the plaintiff merely cites personal
embarrassment” as the reason for seeking confidentiality.
102
Aside from these types of cases, courts usually engage in balancing tests to
determine whether to approve a plaintiff’s request to file under a false name.
103
There is no uniform federal standard as to when this approval should be given.
The D.C. Circuit Court follows the five factor test set out in National Association of
Waterfront Employers v. Chao, which directs courts to consider:
104
“(1) whether the justification asserted by the requesting party is merely to avoid
the annoyance and criticism that may attend any litigation or is to preserve privacy
in a matter of a sensitive and highly personal nature;
(2) whether identification poses a risk of retaliatory physical or mental harm to the
requesting party or even more critically, to innocent non-parties;
(3) the ages of the persons whose privacy interests are sought to be protected;
(4) whether the action is against a governmental or private party; and
(5) the risk of unfairness to the opposing party from allowing an action against it
to proceed anonymously.”
105
The factors that provide the most room for debate in this context are the first
and second. The first, which asks whether the request is “merely” to avoid
annoyance or to “preserve privacy in a matter of a sensitive and highly personal
nature,” will swing in the plaintiff’s favor if the court agrees that the online
harassment is, in fact, sensitive and highly personal. It is easy to imagine a judge
finding that the nonconsensual spread of nude photographs initially taken with
the plaintiff’s consent is neither sensitive nor highly personal. Many people still
blame the victims of nonconsensual pornography. While rape shield laws protect
rape victims from having evidence of prior consensual sex with the defendant
used as evidence against them, there are no comparable protections for victims of
nonconsensual pornography.
The second factor considers the risk of “retaliatory physical or mental harm”
to the plaintiff and to “innocent non-parties.” The risk of mental harm likely will
be more significant than the risk of physical harm to most victims of online
Victims’ Identities in Press Coverage of Child Victimization, 11 JOURNALISM 347, 349 (2010) (explaining that
enhanced privacy provisions for minors in the judicial system stems from the idea that stigma is
especially detrimental to a child’s development and impedes the child’s ability to move on from bad
circumstances in their past).
101. Nat’l Ass’n. of Waterfront Employers v. Chao, 587 F. Supp. 2d 90, 99–100 (D.D.C. 2008)
(quotations omitted)..
102. Id.at 100.
103. See Stegall, 653 F.2d at 186 (announcing that there is no “hard and fast formula” in deciding
when a party may proceed anonymously but the decision calls for a balancing of the parties’ interests);
Booth, supra note 93, at 213 (explaining that courts routinely balance a number of factors in weighing
the parties’ interests); see also Edwards, supra note 7 at 441 (explaining that the procedural methods for
proceeding pseudonymously vary by circuit).
104. Nat’l Ass’n of Waterfront Employers, 587 F. Supp. 2d at 99.
105. Id.
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harassment. Some victims have experienced physical harm from their online
stalkers, however, and a United Nations study has suggested that cyber violence
is equivalent to physical violence for women.
106
To the extent that the risk of
“mental harm” requires expert testimony from a mental health professional,
however, that determination only increases the cost and decreases the accessibility
of this option for putative plaintiffs.
The third factor, concerning the age of the person whose privacy would be
protected, does not limit relief to minors by its terms. It does suggest, however,
that the court is more likely to grant relief to younger applicants.
Whether a nonconsensual porn victim would be able to satisfy each of these
factors depends on at least two considerations. The first is whether the victim will
be able to establish that the request is justified in order to “preserve privacy in a
matter of a sensitive and highly personal nature,” as the first factor states. The
private and personal nature of nonconsensual porn makes it likely that this factor
will weigh in favor of the victim.
The second consideration is whether the judge evaluating the request takes a
conservative or progressive view of the alleged nonconsensual porn and its
accompanying damages. In other words, is the judge more likely to see the
nonconsensual disclosure and reposting of sexual images as posing a “risk of
retaliatory … mental harm to the requesting party” or as “mere” personal
embarrassment? The former would weigh in favor of allowing the pseudonymity,
while the latter would weigh against it. There is reason to believe that at least
some judges will take a more conservative view. In one recent analysis of judicial
language in revenge porn cases, a scholar observed that courts rely on what she
calls “trivializing words” to downplay or minimize the kinds of harm that the
victims experienced.
107
“In these opinions,” she notes, “judicial language generally
indicates little to no recognition of the harms that the victim experienced or of the
impacts of the amplification effects of revenge porn.”
108
The consequences of denying a putative plaintiff’s motion to proceed
anonymously can be significant. Without this option, and in the face of the public
humiliation, shame and fear of retaliation, such plaintiffs are likely to abandon
their claims.
109
One scholar has suggested that compelling plaintiffs who alleged
sexual crimes to litigate under their real names is a form of re-victimization.
110
As
the ability to collect personal details about people through internet searches
expands, including those people’s addresses and employers, the potential
backlash against plaintiffs in nonconsensual porn cases may become more severe.
106. Charlotte Alter, U.N. Says Cyber Violence Is Equivalent to Physical Violence Against Women, TIME
(Sep. 25, 2015) http://time.com/4049106/un-cyber-violence-physical-violence/.
107. Vora, supra note 24, at 243.
108. Id. at 245.
109. Booth, supra note 93, at 218.
110. Andrea A. Curcio, Rule 412 Laid Bare: A Procedural Rule That Cannot Adequately Protect Sexual
Harassment Plaintiffs from Embarrassing Exposure, 67 U. CIN. L. REV. 125, 155–56 (1998) (explaining that
childhood sexual abuse is one of the most personal and private issues and forcing a plaintiff to have
this abusive past exposed has the potential to be irreparably damaging).
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PROTECTING DOES AND OUTING MOBSTERS 171
C. State Regulation of Nonconsensual Porn Provides Inconsistent Relief and
Insufficient Victim Anonymity
The difficulties posed by inconsistent anonymity pleading standards have
not been resolved by the recent explosion of new nonconsensual porn regulation
at the state and local levels. These new laws prohibiting nonconsensual
pornography is a vital component of the legal response to this problem. Without
a clear means of unmasking potential defendants, however, these legislative
efforts are ineffective in many cases and perhaps in the most severe cases. In
addition, these cases can be hard to litigate for procedural reasons. The police may
be unfamiliar with the state laws, if any, or may be unsure about how to establish
the computer forensics necessary to prosecute the case.
111
Perhaps in response to the insufficiency of traditional tort remedies to combat
nonconsensual porn, states and some cities have stepped in to create new
nonconsensual porn legislation. In November 2017, New York City passed its own
nonconsensual porn law, as New York State does not yet have a similar law.
112
New York City’s law makes the nonconsensual dissemination of intimate images
“with the intent to cause economic, physical or substantial emotional harm” a
misdemeanor, punishable by a $1,000 fine and up to one year of jail.
113
While
celebrating this development, Mary Anne Franks, a leading scholar of
nonconsensual porn regulation and co-founder of the Cyber Civil Rights Initiative,
noted that the likely effectiveness of the law was limited in three ways.
114
First, the
intent requirement narrows the scope of the crime to revenge porn, letting people
who engage in nonconsensual porn for “profit or entertainment purposes
completely off the hook.”
115
Second, the law contains an exception for disclosures
protected by the First Amendment, and it is not clear what that means in this
context. Finally, Franks noted that the classification of revenge porn as a
misdemeanor limits the extent to which prosecutors will investigate and pursue
these cases seriously.
116
The rapid expansion of state revenge porn laws, from 3 in 2012 to 38 in 2017,
attests to the viral spread of nonconsensual porn and the need for a unique
regulatory approach. Until 2012, only three states – New Jersey, Alaska and Texas
– had outlawed nonconsensual pornography. Since 2012, however, 35 other states
have outlawed this conduct.
117
The distribution of sexually explicit images without
the subject’s consent therefore is now illegal under the laws of 38 states as well as
111. Margaret Talbot, Taking Trolls to Court, at 56 NEW YORKER, Dec. 15, 2016.
112. Melanie Ehrenkranz, Revenge Porn is Finally Criminalized in New York City, G
IZMODO (Nov. 16,
2017) https://gizmodo.com/revenge-porn-is-finally-criminalized-in-new-york-city-1820482756.
113. Id.
114. Id.
115. Id.
116. Id.
117. These include Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut,
Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Louisiana, Maine, Maryland,
Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North
Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia,
Washington, West Virginia and Wisconsin. 38 States + DC Have Revenge Porn Laws, C
YBER CIVIL RIGHTS
INITIATIVE, https://www.cybercivilrights.org/revenge-porn-laws/ (last visited Jan. 19, 2018).
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the District of Columbia.
118
These laws vary tremendously in their content and
scope.
119
In addition, legislative efforts to enact similar laws are underway or are
pending in eight other states as well as Puerto Rico.
120
There is no federal law against nonconsensual pornography in the United
States. A Senate proposal to criminalize nonconsensual porn, whose short title is
the Ending Nonconsensual Online User Graphic Harassment (ENOUGH) Act of
2017, was introduced in November 2017.
121
Facebook and Twitter supported the
bill.
122
The previous year, in August 2016, Representative Jackie Speier introduced
a similar bill called the Intimate Privacy Protection Act that would have
established a federal law prohibiting its distribution.
123
The bill was not enacted.
124
The regulation of nonconsensual porn is challenging in part because of First
Amendment concerns. Laws restricting the content of speech, possibly including
nonconsensual pornography, are invalid for violation of the First Amendment
unless they are “necessary to a compelling state interest.”
125
Courts have, however,
allowed the proscription of many kinds of harmful speech, including incitement,
threats, obscenity, child pornography and criminal conspiracies.
126
Laws targeting
nonconsensual porn may risk a First Amendment challenge because of their
presumed content-based restrictions.
127
As Professor Mary Anne Franks explained
in a guide to developing effective revenge porn laws, laws that criminalize
behavior based on an intent to harass, humiliate or cause emotional distress may
also violate the First Amendment by characterizing that behavior as harassment
rather than an invasion of privacy.
128
One scholar has suggested that
nonconsensual porn may be regulated as a form of hate speech or group libel,
which has low First Amendment value.
129
Unlike group libel, which is less
protected because it undermines social beliefs about a portion of the population
130
,
however, nonconsensual porn is almost always directed at an individual.
118. Id.
119. See id.
120. Franks, supra note 22, at 4.
121. Ending Nonconsensual Online User Graphic Harassment (ENOUGH) Act of 2017, S. 2162,
115th Cong. (2017).
122. Chris Morris, Revenge Porn Law Could Make It A Federal Crime to Post Explicit Photos Without
Permission,
FORTUNE (Nov. 28, 2017), http://fortune.com/2017/11/28/revenge-porn-law/.
123. Intimate Privacy Protection Act of 2016, H.R. 5896, 114th Cong. (2016).
124. Id.
125. Koppelman, supra note 51, at 662.
126. Id.
127. Cooke, supra note 52, at 482.
128. Franks, supra note 22, at 7, 8.
129. Cooke, supra note52, at 485.
130. G
EOFFREY R. STONE ET AL., THE FIRST AMENDMENT 258 (5
th
ed. 2016) (“Group libel is of ‘low’
First Amendment value because it operates not by persuasion but by insidiously undermining social
attitudes and beliefs.”).
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PROTECTING DOES AND OUTING MOBSTERS 173
One advocacy organization dedicated to ending nonconsensual porn
131
, the
Cyber Civil Rights Initiative, has developed model state
132
and federal
133
criminal
laws as well as a model civil law
134
to combat nonconsensual porn. The model civil
law provides an option for proceeding anonymously, specifying that “all
information about the plaintiff may be redacted from pleadings and court filings
and the plaintiff may proceed under [a] pseudonym.”
135
It also mandates that the
“court shall inform the plaintiff of the option to proceed under [a] pseudonym at
the earliest possible point and shall maintain the records in a manner that protects
the plaintiff’s confidentiality.”
136
These provisions underscore the importance,
from the perspective of advocates for effective nonconsensual porn legislation, of
allowing plaintiffs to proceed without fear that their personal information will be
disclosed to the public as a consequence of litigation. The model civil law does
not, however, make any provision for uncovering the identity of a pseudonymous
defendant.
Indeed, only a few enacted state laws allow nonconsensual porn victims to
proceed anonymously. Under Connecticut’s recently revised laws, the names and
addresses of victims of “voyeurism” (as the state describes the crime of recording
another person without that person’s knowledge and consent) are confidential.
137
The victim’s identifying information may only be disclosed by order of the state’s
Superior Court, although the information may be provided to the accused.
138
Victims of voyeurism also need not disclose their address or telephone number
during any trial or evidentiary hearing, which further reduces the risk that their
contact information will be disclosed on official court transcripts.
139
While these provisions are admirable, their benefits are limited by the
relatively narrow scope of the statute. Connecticut’s definition of “voyeurism”
omits much of what is popularly understood as nonconsensual porn. For example,
“voyeurism” is defined as knowingly recording images of another person without
that person’s knowledge and consent when the subject has a reasonable
expectation of privacy under any of the following conditions: (1) with malice, (2)
for sexual gratification, (3) by trespass or (4) when the images are of the other
131. While the Cyber Civil Rights Initiative’s website notes that its initial campaign was to end
“revenge porn,” its “Guide for Legislators” explains that the term “‘revenge porn,’ though popular, is
misleading” and notes that ‘[m]any victim advocates . . . use the term “nonconsensual pornography.”
Compare The End Revenge Porn (ERP) Campaign, C
YBER CIVIL RIGHTS INITIATIVE, https://www.cyber
civilrights.org/erp-campaign/
(last visited Jan. 16, 2018) with Guide for Legislators, CYBER CIVIL RIGHTS
INITIATIVE, https://www.cybercivilrights.org/guide-to-legislation/ (last visited Jan. 16, 2018).
132. CCRI Model State Law, C
YBER CIVIL RIGHTS INITIATIVE, https://www.cybercivilrights.org/
model-state-law/ (last visited Jan. 16, 2018).
133. CCRI Model Federal Law, C
YBER CIVIL RIGHTS INITIATIVE, https://www.cybercivilrights.org/
ccri-model-federal-law/ (last visted Mar. 27, 2018).
134. CCRI Model Civil Law, C
YBER CIVIL RIGHTS INITIATIVE, https://www.cybercivilrights.org/ccri-
model-civil-law/
(last visited Mar. 27, 2018).
135. Id.
136. Id.
137. An Act Concerning Invasions of Privacy, 2015 Conn. Pub. Act No. 15-213, 4-5 (Reg. Sess.).
138. Id.
139. Id.
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174 DUKE JOURNAL OF GENDER LAW & POLICY Volume 25:155 2018
person’s genitals or buttocks (which presumably covers “upskirting”).
140
In effect,
“voyeurism” as defined here applies only to nonconsensual recording, and not to
nonconsensual distribution. It does not regulate the nonconsensual distribution of
images taken with the subject’s consent even when there is an expectation that
those images will remain private. A woman who sends nude pictures voluntarily
by text to her boyfriend would have no cause of action under Connecticut’s laws
if that boyfriend then posted those private images to a website or on social media.
California’s nonconsensual porn laws establish a kind of de facto mens rea of
intent to cause “serious emotional distress.” They provide, inter alia, that when a
person distributes intimate images of another “under circumstances in which the
persons agree or understand that the image shall remain private,” the distributor
“knows or should know that distribution of the image will cause serious emotional
distress, and the person depicted suffers that distress.”
141
D. Minnesota’s Law Illustrates the Need for Greater Victim Protections.
In 2016, Minnesota passed the most comprehensive state revenge porn law
yet, but even this law does too little to support victims and encourage them to
come forward. This law, which went into effect on August 1, 2016, created both
civil and criminal penalties by making it unlawful to “disseminate private sexual
images of another without consent.”
142
The law also prohibits sexual solicitation
without the subject’s consent,
143
such as in cases where a defendant posts a
plaintiff’s personal information on a website such as Craigslist and, without her
consent, invites other people to contact her for sex. It creates a civil cause of action,
allowing the court to award a prevailing plaintiff general and special damages, as
well as any profit made from the dissemination of the images.
144
In addition, the
court may award a civil penalty to the plaintiff, up to $10,000, as well as court costs
and reasonable attorneys’ fees.
145
There is also a provision for injunctive relief,
with a civil fine of up to $1,000 per day for failure to comply with the injunction.
146
This would penalize the continued display and/or distribution of the
nonconsensual images.
The exclusions in the Minnesota law are as important as its inclusions. It
explicitly excludes from coverage images made for the purpose of the legal sale of
goods, including the “creation of artistic products for sale or display.”
147
It also
contains an exception for images that “relate to a matter of public interest” where
“dissemination serves a lawful purpose.”
148
The latter exception provides cover for
140. Id.
141. California S.B. 1255, Sec. 1.7 (amending Penal Code Section 647(j)(4)(A).
142. Memorandum from Chris Turner, Minnesota Senate Fiscal Analyst, “S.F. No. 2713 -
Dissemination of Private Sexual Images; Civil Action and Criminal Penalties (First Engrossment)”
(May 2, 2016), http://www.senate.leg.state.mn.us/departments/scr/billsumm/summary_display_from_
db.php?ls=89&id=4659.
143. Revenge Pornography Act, M
INN. STAT. § 604.31(2) (2016).
144. Id. at § 604.31(3)
145. Id.
146. Id. at § 604.31(4)
147. Id. at. § 604.31(6)(a)(4).
148. Id. at § 604.31(6)(a)(5).
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PROTECTING DOES AND OUTING MOBSTERS 175
journalists who post sex tapes of celebrities, for example, if they can establish that
it is in the public interest to do so. Another interesting feature of the Minnesota’s
revenge porn law is its recognition of the need for sensitivity toward the privacy
of the plaintiff. To this end, the law specifically allows for the confidentiality of
filings under the statute “to protect the privacy of the plaintiff.”
149
Recent litigation under this statute, however, demonstrates the shortcomings
of this law. In a recent case, the Minnesota Court of Appeals affirmed the district
court’s denial of the plaintiff’s request to proceed as “Jane Doe” in a lawsuit
involving the nonconsensual filming of her while she was partially nude.
150
The
appellant, a professional entertainer, was hired to perform at a show involving a
Hawaiian dance for a client company.
151
Alleging that the defendants allowed their
security cameras to capture her image while she was changing costumes, she sued
them for negligence, invasion of privacy, and intentional and negligent infliction
of emotional distress.
152
In her complaint, she used a Jane Doe pseudonym,
explaining that “she wished to proceed under a pseudonym because of the risk of
harm to her career, reputation, and relationships if it were public knowledge that
she had been filmed while partially nude.”
153
The District Court denied her
request, explaining that the Rules of Civil Procedure required her to use her true
name and declining to exercise its discretion to allow her to proceed under a
pseudonym.
154
It reasoned that “the public’s interest in an open and transparent
judiciary outweighed appellant’s claimed privacy interest.”
155
On appeal, Doe argued that the district court abused its discretion by failing
to take into account factors recognized by other courts favoring pseudonymity.
156
She also challenged the court’s characterization of her privacy interest as
“changing clothes.”
157
The appellate court noted that while the state’s civil
procedure rules mandate that a party must include her true name on the summons
and complaint, some statutes permit pseudonymous pleading.
158
It expressly
recognized that the newly enacted Minnesota nonconsensual porn law “expressly
requires district courts to allow confidential filings in cases brought under the
statute in order to protect the plaintiff’s privacy.”
159
However, because the
appellant did not frame her original claims as a violation of that statute, the court
summarily concluded that its exceptions did not apply to her claims.
160
149. Id. at § 604.31(5) (2016).
150. Doe v. Empire Ent., LLC, No. A16-1283, 2017 Minn. App. Unpub. LEXIS 419, at *1–2 (Minn.
Ct. App. May 8, 2017).
151. Id. at *2.
152. Id.
153. Id.
154. Empire Ent., LLC, 2017 Minn. App. Unpub. LEXIS 419, at *3.
155. Id.
156. Id.
157. Id. at *3–4.
158. Id. at *5–6.
159. Id.
160. Id. While the decision does not explain why Doe did not assert claims under Minnesota’s NCP
statute, one possibility is that the statute did not go into effect in time. The events Doe alleged in her
complaint took place in January 2016, and Minnesota’s law did not go into effect until August 1, 2016.
Alternatively, it may have been an oversight on the part of her attorney, Peter Nickitas, who has been
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176 DUKE JOURNAL OF GENDER LAW & POLICY Volume 25:155 2018
In response to appellant’s arguments that the court should have evaluated
her request according to factors used by other federal courts, the appellate court
noted that Minnesota has not adopted a test for district courts to use when
considering a request for pseudonymous pleading.
161
It observed that most federal
courts of appeal have established a balancing test in such cases, although the
circuits differ on the factors to be weighed.
162
While the language of the Federal
Rules of Civil Procedure is identical to that of the Minnesota rules on naming
parties, Minnesota appellate courts are “not bound by federal interpretations of
the federal rule.”
163
If there were an exception to the Minnesota rules, the court noted, it would
be the province of the Minnesota Supreme Court and the “statutory rule-making
process” to create one.
164
It then concluded that the district court did not abuse its
discretion by determining that the public interest in open proceedings outweighed
the plaintiff’s interest in privacy.
165
In dictum, the court suggested that this debate
could have been avoided if the defendants had been more civil, noting that a
defendant’s decision to challenge a plaintiff’s request to proceed anonymously
when “facing claims of a highly sensitive nature . . . could be viewed in some
quarters and in some cases as unseemly.”
166
What is missing from the appellate court’s analysis is a response to the
appellant’s claims that the district court unfairly minimized her privacy interest.
While the court emphasized the traditional legal preference for open proceedings,
nowhere in the decision did it analyze the weight of the countervailing interest in
privacy in claims “of a highly sensitive nature.” It did not extrapolate an interest
in procedural privacy from the statutory permission to file pseudonymously
granted by the state’s new nonconsensual porn law, which appears to cover harms
similar to those asserted by the appellant. Nor did it evaluate, even briefly, the
appellant’s claims that she would suffer personal and professional harm from the
use of her true name in the proceedings. It is easy to determine that the public’s
interest in open proceedings outweighs a complainant’s interest in privacy when
there is no acknowledgment of the severity of the harms that may flow from
violation of that privacy in the instant case. Doe v. Empire illustrates the limitations
of even a model state nonconsensual porn law when it comes to the privacy
interests of nonconsensual porn victims.
E. The Standards for Doe Plaintiffs Should Be Revised Fairly
Given the extreme and permanent damage that nonconsensual porn can
cause in this age of amplification, and the insufficient protections provided by
suspended from practice in Minnesota four times as of this writing. See Seth Leventhal, Peter “Extreme
Caution” Nickitas Strikes Again, Gets a Spare This Time, M
INNESOTA LITIGATOR (Aug. 18, 2017)
http://www.leventhalpllc.com/2017/08/peter-extreme-caution-nickitas-strikes-again-gets-a-spare-this-
time/.
161. Empire Ent., LLC, 2017 Minn. App. Unpub. LEXIS 419, at *7.
162. Id. at *8–9 (citing Doe v. Megless, 654 F.3d 404, 410 (3d. Cir. 2011)).
163. Empire Ent., LLC, 2017 Minn. App. Unpub. LEXIS 419, at *8.
164. Id. at *10.
165. Id. at *10–11.
166. Id. at n 3.
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PROTECTING DOES AND OUTING MOBSTERS 177
nonconsensual porn laws in most states, it should be easier for plaintiffs to sue
anonymously in online harassment cases where they can demonstrate that suing
under their real name will increase the likelihood of mental harm. Even if it were
easier for plaintiffs to file anonymous lawsuits against their online harassers, there
would still be considerable barriers to justice for many plaintiffs. The cost of
private litigation remains prohibitive, and the procedural work involved in
securing the right to sue anonymously would only add to that cost.
III.
REVENGE PORN DEFENDANTS RECEIVE TOO MUCH IDENTITY PROTECTION
Should courts adopt a prima facie standard to enable these victims to unmask
anonymous commenters more easily? If there is a right to speak anonymously on
the internet, that right may be outweighed by the rights of tort victims to bring
alleged anonymous harassers to justice. Although making it easier for victims of
online harassment to discover the identities of their harassers may be an attractive
remedy, the practical and ethical difficulties of unmasking anonymous harassers
are substantial.
In some cases, the anonymous perpetrators and promoters of nonconsensual
porn can be identified by the ICPs that host them. In many cases, however, even
the internet service providers (ISPs) and ICPs do not know the posters’ real
identities and therefore cannot disclose them, as described below. Even when ISPs
and ICPs know these real identities, there is little legal incentive for them to
disclose those identities because they are shielded from liability for the postings
by the CDA.
167
Because not all anonymous posters can be unmasked, there is a strong need
for greater deterrence of nonconsensual porn at the ICP level. ICPs should be
compelled to monitor, deter and otherwise minimize the harm caused by
nonconsensual porn because they are in the best technological position to do so.
The fact that they are able to do so is evident from the voluntary efforts some ICPs
are beginning to make under public pressure. While these voluntary efforts are
laudable, there would be greater security for nonconsensual porn victims if such
efforts were legally required and widely applicable to all ICPs, including those
who have not yet chosen to engage in them.
A. Anonymity Exacerbates Online Harassment
It has never been easier to be anonymous online. As it has become easier to
track and monitor people’s internet usage, and as public awareness of monitoring
has increased, new resources have sprung up to make it easier to use the internet
anonymously. One example is Tor, an anonymizing browser.
168
Tor describes itself
as “an open network that helps you defend against traffic analysis, a form of
network surveillance that threatens personal freedom and privacy, confidential
business activities and relationships, and state security.”
169
It is unlikely that
internet users will give up their anonymity online in the future.
167. Communications Decency Act of 1996, 47 U.S.C. §230 (c)(1) (1996).
168.
TOR, https://www.torproject.org/ (last visited Jan. 19, 2018).
169. Id.
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178 DUKE JOURNAL OF GENDER LAW & POLICY Volume 25:155 2018
In recent years, scholars have debated the extent to which anonymity should
be regulated on the Internet, especially in the context of tort and obscenity
allegations.
170
This is an especially contentious issue with regard to nonconsensual
porn because anonymity is a significant factor in nonconsensual porn and online
harassment in general. In many cases, online threats come from anonymous
sources. More than half of those who have experienced online harassment say that
they did not know the person involved in the most recent harassing incident.
171
The internet itself facilitates anonymity, by enabling people to post under assumed
names.
172
More than 60% of internet users believe that online environments allow
for more anonymity than their offline lives do.
173
This belief is well grounded.
Facebook found that harassment, bullying, and other online abuse is committed
by people using fake names eight times more often than by people using their real
names.
174
Yet anonymity online has important benefits. There is an honorable tradition
of speaking anonymously or pseudonymously, especially about controversial
issues. Most of the Federalist Papers were first published under pseudonyms,
including those penned by Alexander Hamilton.
175
Anonymity promotes free
expression by minimizing the risks attached to being identified with specific
beliefs or practices. It protects individuals’ privacy from public and private
tracking. In a conservative political environment, for example, liberal thinkers may
be more interested in hiding their search activity from potential monitoring
because they anticipate the possibility of negative repercussions in the future.
Being anonymous online can also have more vital consequences. For certain
groups, such as many victims of domestic violence whose abusers may seek them
and their children out, anonymity is essential to everyday safety and wellbeing.
For example, domestic violence victims benefit from the ability to be able to
rebuild their lives without the risk of being located by their abusers. It would be
not only unwise, but also dangerous to get rid of online anonymity altogether.
B. Anonymous Nonconsensual Porn Perpetrators Cannot Be Unmasked Easily
The spate of new state laws creating civil and criminal penalties for
nonconsensual porn does little to help victims of anonymous nonconsensual porn
170. See, e.g., Bryan H. Choi, The Anonymous Internet, 72 MD. L. REV 501 (2013) (suggesting that
internet regulators limit anonymity to avert more onerous limitations on generativity); Victoria Smith
Ekstrand, Unmasking Jane and John Doe: Online Anonymity and the First Amendment, 8 C
OMM. L & POL’Y
405 (2003); Jason M. Shepard & Genelle Belmas, Anonymity, Disclosure and First Amendment Balancing in
the Internet Era: Developments in Libel, Copyright, and Election Speech, 15
YALE J.L. & TECH. 92 (2012–13)
(recommending adoption of a prima facie standard to unmask online speakers); Sophia Qasir, Note,
Anonymity in Cyberspace: Judicial and Legislative Regulations, 81 F
ORDHAM L. REV. 3651 (2013) (suggesting
that courts expand the remedies available to victims of harmful online speech and proposing a
summary judgment standard for unmasking online speakers).
171. Duggan, supra note 37.
172. Id.
173. Id.
174. Lisa Vaas, Facebook Finally Changes Real-Name Policy, N
AKED SECURITY (Nov. 3, 2015)
https://nakedsecurity.sophos.com/2015/11/03/facebook-finally-changes-real-name-policy/.
175. Chesa Boudin, Note, Publius and the Petition: Doe v. Reed and the History of Anonymous Speech,
120 Y
ALE L.J. 2140, 2153 (2010-2011).
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PROTECTING DOES AND OUTING MOBSTERS 179
posts if neither the victim nor law enforcement officials can identify the
perpetrators. Plaintiffs must be able to identify defendants to sue them. When a
victim of nonconsensual porn discovers that her images have been shared on the
internet, she may not know the true identity of the person or people who shared
the images. In such cases, a primary obstacle for potential plaintiffs in addressing
these torts is finding out who the speaker is. Many harassers do not post under
their own name, preferring to hide behind a pseudonymous user name. This is a
common practice. It is easier for people to post potentially offensive comments and
images under false names than under their own because there is less accountability
for doing so.
176
While anonymity makes it easier to post nonconsensual porn images, it is
harder for victims of nonconsensual porn to bring anonymous posters to justice in
a civil action. Because courts have recognized a qualified right to speak
anonymously,
177
there is no simple way to unmask an anonymous commentator.
The Ninth Circuit has held that there is a Constitutional right to speak
anonymously without clarifying the standards under which an anonymous
speaker may exercise that right.
178
It has clarified, however, that whenever a party
seeks the identity of an anonymous online poster, “the nature of the speech should
be a driving force in choosing a standard.”
179
It also mandates that the Court
“consider[] the important value of anonymous speech balanced against a party’s
need for relevant discovery in a civil action.”
180
Virginia is the only state that has
passed legislation defining the standards that must be met before an anonymous
speaker’s identity can be disclosed to a requesting party.
181
California considered
similar legislation but did not pass it.
182
Over the last two decades, federal courts and some state courts have adopted
rules for unmasking unknown defendants who are accused of committing certain
torts online, including defamation, intellectual property infringement, tortious
interference with contractual relations, and fraud.
183
In such instances, the plaintiff
is required to make some showing of likelihood of success beyond the standard
pleading requirements.
184
However, the difficulties plaintiffs face in making such
176. Duggan, supra note 37.
177. Mallory Allen, Ninth Circuit Unmasks Anonymous Internet Users and Lowers the Bar for Disclosure
of Online Speakers, 7 W
ASH. J.L. TECH. & ARTS 75, 76-77 (2011).
178. Compare with In re Anonymous Online Speakers, 661 F.3d 1168, 1177 (9th Cir. 2011) (refusing
to hold that district court abused its discretion in applying a summary judgment standard) with S103
Inc. v. Bodybuilding.com LLC, 441 F. Appx. 431, 433 (9th Cir. 2011) (vacating the district court’s
decision to use a summary judgment standard); see also OBI Pharma, Inc. v. Does 1-20, Order Granting
Ex Parte Motion for Early Discovery (S.D. Cal. 2017) (acknowledging that “The Ninth Circuit has not
identified one specific test that applies anytime [sic] a party seeks the identity of an anonymous online
poster through discovery.”).
179. OBI Pharma, Inc., Order Granting Ex Parte Motion for Early Discovery (S.D. Cal. 2017).
180. Id. (citing In Re Anonymous Online Speakers, 661 F.3d at 1176).
181. See V
A. CODE ANN. §8.01-407.1 (2012).
182. A.B. 1143, 2003 Leg., Reg. Sess. (Cal. 2003), available at ftp://www.leginfo.ca.gov/pub/03-
04/bill/asm/ab_1101-1150/ab_1143_bill_20030430_amended_asm.html.
183. See Marian K. Riedy; Kim Sperduto, Revisiting the Anonymous Speaker Privilege, 14 N.C.
J.L. &
TECH. 249, 250 (2012).
184. Reno v. ACLU, 521 U.S. 844, 870 (1997); Amy P. Nickerson, Comment, Coercive Discovery and
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a showing have been subject to critical consideration, and scholars have begun to
question the wisdom of protecting anonymous posters online.
185
Some have
pointed out that anonymity online is especially dangerous, rather than being
worthy of special protection.
186
Professors Reidy and Sperduto argue that “the
anonymous speaker privilege needs a substantial redirection not only because of
the shaky jurisprudential basis for the privilege as it has been constructed, but also
because the policy considerations that originally justified the creation of the
privilege have been undermined by the realities of today’s Internet.”
187
Despite
substantial criticism of the anonymous speaker privilege among legal scholars, it
largely remains in place.
If unmasking anonymous posters is challenging in a civil case, the criminal
law alternative may be even worse. The criminal justice system is especially
daunting for victims who cannot identify a defendant. Someone whose
nonconsensual porn images are posted anonymously will have more difficulty
getting criminal charges filed on her behalf than she would if the speaker were
known. Law enforcement officials may be unmotivated to try to identify
anonymous speakers, in part because doing so is expensive and time-consuming.
Identification may require the use of computer forensic specialists, which may
require cooperation with outside agencies.
188
Although one scholar has proposed
a model federal cyber-harassment statute that would provide incentives for the
investigation of anonymous online harassers, no such incentive currently exists.
189
C. ICPs Should Unmask Anonymous Posters, Subject to Limitations
When it is possible to discover the identity of an anonymous nonconsensual
porn poster by asking the hosting ICP, a victim or prosecutor may make that
request. The most direct way to discover the identity of an anonymous poster is
to compel the ICP hosting the speaker to disclose his identity. This is likely to yield
mixed results, in that ICPs are notoriously resistant to such pressure. The
mechanism for doing so may include issuing a subpoena to the ICP, with a
substantial penalty attached for noncompliance. ICPs are unlikely to provide this
information voluntarily. Google, for example, specifies only one court from which
is accepts requests from user data, and notes that “requests to identify users by
real names or IP addresses may be declined.”
190
the First Amendment: Towards a Heightened Discoverability Standard, 57 UCLA L. REV. 841, 846 (2010).
185. Michael S. Vogel, Unmasking “John Doe” Defendants: The Case Against Excessive Hand-Wringing
Over Legal Standards, 83 Or. L. Rev. 795, 822 (2004) (“The general right to speak anonymously on the
Internet is substantially different from the asserted right to remain anonymous when anonymity is
being used as a shield protecting tortious or illegal conduct. The rapidity with which false information,
trade secrets, and the like can be spread over the Internet creates a serious hazard, a hazard which must
be weighed in determining the proper judicial approach to these situations.”).
186. Danielle Keats Citron, Cyber Civil Rights,
89 B.U. L. REV. 61, 63 (2009).
187. Reidy and Sperduto, supra note 183, at 253.
188. A. Meena Seralathan, Making the Time Fit the Crime: Clearly Defining Online Harassment Crimes
and Providing Incentives for Investigating Online Threats in the Digital Age, 42 B
ROOKLYN J. INT’L L. 425,
429 (2016).
189. Id.
190. Serving Civil Subpoenas or Other Civil Requests on Google, G
OOGLE, https://support. google.com/
faqs/answer/6151275?hl=en1497538752037 (last visited Jan. 19, 2018).
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Another problem with such subpoenas is that many ICPs cannot comply
because they lack the knowledge to do so. ICPs may not even know the real
identity of any particular user. While Facebook requires users to use their real
names,
191
other ICPs and ISPs do not. Google discontinued its real name policy in
2014, after three years of intense debate over the wisdom of controlling users’
ability to define their own online identity.
192
Ongoing conflicts over policies that
require users to disclose their real names are sometimes referred to as the
“nymwars,” derived in part from the suffix “-nym” (as in pseudonym.)
193
In many other cases, however, it is possible for the ICP to identify the name
of the poster. Social media companies may choose to comply with subpoenas.
Doing so in the case of an accused nonconsensual porn poster certainly would be
consistent with these companies’ use policies prohibiting nonconsensual porn.
194
At a minimum, it is often possible for social media companies to determine the
physical location of an anonymous user with some precision using geolocation
data.
195
This data can be used to narrow down the area in which potential posters
live and/or work, making it easier to identify possible perpetrators and
defendants.
Given the protections afforded to anonymous posters on the internet, First
Amendment protections for many kinds of speech, the widespread social
expectation and tradition that people may speak anonymously online, and the
technological difficulties inherent in identifying the real identities of unknown
speakers, it is unlikely that nonconsensual porn victims will be able to unmask
anonymous posters through private action that does not involve cooperation by
an ISP or ICP. For that reason, it is necessary to reexamine the role that ICPs in
particular play in the growth and spread of nonconsensual porn and the extent to
which ICPs should be incentivized to stem this growth.
IV.
THE COMMUNICATIONS DECENCY ACT SHOULD INCENTIVIZE ICP DETERRENCE
While improving the ability to identify perpetrators is a critical step, ICPs can
also do more to deter and stem the growth of nonconsensual porn in other ways.
Many social media companies have begun to do this voluntarily, which should be
lauded. As is true with any voluntary effort, however, these practices can be
withdrawn at any time. A comprehensive review of what ICPs can do to fight the
nonconsensual porn epidemic, whose growth they have unintentionally
191. What Names Are Allowed on Facebook? FACEBOOK, https://www.facebook.com/help
/112146705538576 (last visited Jan. 19, 2018).
192. Rebecca MacKinnon & Hae-in Lim, Google Plus Finally Gives Up on Its Ineffective, Dangerous
Real-Name Policy, S
LATE: FUTURE TENSE (July 17, 2014 3:19 PM) http://www.slate.com/
blogs/future_tense/2014/07/17/google_plus_finally_ditches_its_ineffective_dangerous_real_name_pol
icy.html.
193. Nymwar, T
ECHOPEDIA, https://www.techopedia.com/definition/29486/nymwar (last visited
Jan. 19, 2018).
194. See notes 207-208 infra and accompanying text.
195. Vijay, Social Media Apps Can Disclose Anonymous Users Through Location Data, T
ECHWORM (Apr.
17, 2016), https://www.techworm.net/2016/04/social-media-apps-can-disclose-identity-users-location-
data.html
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182 DUKE JOURNAL OF GENDER LAW & POLICY Volume 25:155 2018
facilitated, should include a review of their role in stopping nonconsensual porn
posts before or shortly after they occur. As a first matter, however, it is necessary
to reexamine the protections of the CDA.
A. The CDA Shields ICPs from Liability for Nonconsensual Porn
Nonconsensual porn victims generally cannot sue ICPs for damage done by
anonymous posters because of the CDA’s safe harbor provision.
196
As a general
matter, the CDA shields social media companies and other ICPs from direct
liability based on the information others publish on their networks. Section 230 of
the CDA states that “no provider… of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another
information content provider.”
197
The CDA notes that “[i]ncreasingly Americans
are relying on interactive media for a variety of political, educational, cultural and
entertainment services.”
198
It also underscores the United States’ policy to
“promote the continued development of the Internet … and other interactive
media.”
199
In one of the first cases to interpret the CDA, the Fourth Circuit Court of
Appeals observed that Section 230 “plainly immunizes computer service
providers like AOL from liability for information that originates with third
parties.”
200
The plaintiff in that case had been targeted by an anonymous online
poster who had advertised items glorifying the bombing of the Alfred P. Murrah
Federal Building in Oklahoma six days after the bombing took place and listed the
plaintiff’s telephone number as contact information.
201
The plaintiff sued AOL for
negligence in failing to prevent the re-posting of these allegedly defamatory
advertisements after their removal. The court held that the CDA shielded AOL
from liability under common law negligence claims.
In explaining its rationale, the court observed that Congress enacted the CDA
in order to protect online service providers from tort liability based on what its
customers post.
202
Given the massive numbers of online users, it reasoned that
Congress had decided that service providers would have to restrict
communication too much if they were liable for its content:
The specter of tort liability in an area of such prolific speech would have an
obvious chilling effect. It would be impossible for service providers to screen each
of their millions of postings for possible problems. Faced with potential liability
for each message republished by their services, interactive computer service
providers might choose to severely restrict the number and type of messages
posted. Congress considered the weight of the speech interests implicated and
196. See, e.g., Caraccioli v. Facebook, No. 5:15-cv-04145-EJD (9
th
Cir. June 6, 2017), available at
http://cdn.ca9.uscourts.gov/datastore/memoranda/2017/06/06/16-15610.pdf, at 2-3 (holding that
Facebook is not liable for nonconsensual porn posted on it because it is an “information content
provider” within the meaning of the CDA).
197. 47 U.S.C. §230 (c)(1) (1996).
198. Communications Decency Act of 1996, 47 U.S.C. §230 (c)(1) (1996).
199. 47 U.S.C. §230 (b)(1) (1996).
200. Zeran v. America Online, Inc., 129 F.3d 327, 328 (4th Cir. 1997), cert. denied, 524 US 937 (1998).
201. Zeran, 129 F.3d 327 at 329.
202. Zeran, 129 F.3d 327 at 328.
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PROTECTING DOES AND OUTING MOBSTERS 183
chose to immunize service providers to avoid any such restrictive effect.
203
But the CDA does not immunize online service providers from all liability. It
does not restrict the federal government’s ability to deter criminal activity and
enforce criminal law.
204
Indeed, the Act itself notes that “it is the policy of the
United States … to ensure vigorous enforcement of Federal criminal laws to deter
and punish trafficking in obscenity, stalking, and harassment by means of
computer.”
205
In other words, the CDA’s provisions will not bar a provider of
online services from liability in connection with certain crimes facilitated by
internet use.
One concern an ICP may have about removing harassing posts is the threat
of liability from the posters themselves. The CDA protects them against precisely
this type of claim, even when the poster claims that they have a right to be heard
under the First Amendment. The CDA explicitly protects any “provider or user
of an interactive computer service” from liability based on any voluntary
restriction or removal of material that the provider or user finds to be “obscene,
lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable,
whether or not such material is constitutionally protected.”
206
B. ICPs’ Efforts to Combat Nonconsensual Porn Are Helpful and Insufficient
Some social media companies take it upon themselves to address the
potential harm caused by anonymous sources by providing ways to report hate
speech or harassment. Microsoft, Google, Facebook, Twitter, and Reddit
developed policies prohibiting nonconsensual porn in 2015.
207
Twitter’s revised
rules, for example, “prohibit the posting or sharing of intimate photos or videos
that were or appear to have been taken or distributed without the subject’s
consent.”
208
As a consequence of posting such material, Twitter “will suspend any
account [it identifies] as the original poster of intimate media that has been
produced or distributed without the subject’s consent,” and will also suspend
accounts dedicated to nonconsensual porn.
209
Instagram and Tumblr also
developed removal policies for nonconsensual porn.
210
Such self-regulation is helpful, yet limited in its scope and effectiveness. For
example, many reporting mechanisms process complaints according to an
algorithm rather than subjecting reports to human review, and do not allow
people reporting abuse to challenge automated responses that are inaccurate or
inadequate. Self-regulation is also voluntary, and can be withdrawn or scaled back
203. Zeran, 129 F.3d 327 at 331.
204. 47 U.S.C. §230 (e)(1) (1996).
205. 47 U.S.C. §230 (b)(5) (1996).
206. 47 U.S.C. §230 (c)(1) (1996).
207. Carrie Goldberg, How to Report Revenge on Social Media, C.A.
GOLDBERG (Jul. 25, 2015)
https://carrie-goldberg.squarespace.com/report-revenge-porn-on-social-media.
208. About Intimate Media on Twitter, T
WITTER, https://help.twitter.com/en/rules-andpolicies/
intimate-media (last visited January 17, 2018).
209. Id.
210. Casey Johnston, How to Report Social Media Harassment: A Practical Guide, L
ENNY (Jul. 19, 2016)
http://www.lennyletter.com/culture/a474/how-to-report-social-media-harassment-a-practical-guide/.
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when these companies decide that it is no longer in their interest to provide a
reporting service. There is little external incentive for social media companies to
provide consistent, reliable unmasking responses. Indeed, many may fear that the
accused users would sue for violation of what they consider to be their rights of
anonymity.
Perhaps the most promising means of unmasking anonymous harassers is
the voluntary and collaborative efforts of the ICPs who host them. Although there
has been great resistance to social media companies’ real name policies as a general
matter, including the nymwars, there is reason to believe that there may be less
resistance to unmasking in the context of online harassment. Much of the
resistance to real-name policies stemmed from the fact that drag queens and other
marginalized members of society relied on fake names for a variety of beneficial,
or at least innocuous reasons, and saw the real-name policies as a means of
marginalizing them further.
211
There is no comparable social benefit in shielding
alleged nonconsensual porn posters from criminal prosecution or civil liability.
Social media companies have cooperated in unmasking a different kind of
assailant: terrorists. Spurred in part by criticism that they have not done enough
to monitor and deter terrorism, Facebook, Twitter and Google have been devoting
increased resources to finding and removing terrorist propaganda videos and to
shutting down accounts linked to violent terrorist groups.
212
Advertiser boycotts
and lawsuits are compelling them to do so.
213
While these companies have relied
largely on user reports to flag potential offenders, new techniques are being
developed, including algorithms that identify signature images of terrorist
content.
214
This technique is similar to PhotoDNA, which matches images posted
online with those in the National Center for Missing & Exploited Children’s image
database.
215
There is some debate, however, over the effectiveness of these new
techniques and the probability of their long-term success, especially with regard
to their ability to screen video content.
216
Nonetheless, in a joint statement in
December 2016, Facebook, Microsoft, Twitter and YouTube pledged to create a
shared database of unique digital signifiers for violent terrorist imagery, in an
effort to “curb the pressing global issue of terrorist content online.”
217
Facebook is also taking some degree of responsibility for monitoring other
kinds of domestic violence. Police and prosecutors in the Chicago area attribute a
rise in the number of gang-related murders there in part to social media and
streaming platforms such as Facebook Live, which launched in 2016.
218
They
211. See MacKinnon and Lim, supra note 192.
212. Larry Greenmeier, When Hatred Goes Viral: Inside Social Media’s Efforts to Combat Terrorism,
S
CIENTIFIC AMERICAN (May 24, 2017) https://www.scientificamerican.com/article/when-hatred-goes-
viral-inside-social-medias-efforts-to-combat-terrorism/.
213. Id.
214. Id.
215. Id.
216. Id.
217. Partnering to Help Curb Spread of Online Terrorist Content, F
ACEBOOK: NEWSROOM (Dec. 5, 2016)
https://newsroom.fb.com/news/2016/12/partnering-to-help-curb-spread-of-online-terrorist-content/.
218. Shibani Mahtani, Social Media Emerges as New Frontier in Fight Against Violent Crime,
W
ALL ST. J. (Nov. 24, 2017) https://www.wsj.com/articles/social-media-emerges-as-new-frontier-in-
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PROTECTING DOES AND OUTING MOBSTERS 185
believe that social media exacerbates a culture of violence and helps escalate
disputes. A state’s attorney for Cook County said that these platforms “pour[] an
accelerant on what was already there.” Facebook responded to journalists’
inquiries about this connection by noting that it would double the number of
employees reviewing content on Facebook for dangerous and hateful speech to
20,000 in 2018, up from 10,000 in 2017.
The same can and should be done with regard to the most tortious forms of
online harassment. If social media companies can develop new tools and devote
more resources to detecting and deterring terrorism, they can take similar steps
toward combating online harassment. They can, for example, join forces to
develop a shared database of revenge porn imagery and language commonly used
by the online mobs who cause the amplification effects that terrorize so many
victims. They can collaborate to develop more efficient ways of deterring
nonconsensual porn, and they can make a public statement of their intent to do so.
Taking a public and concerted stand against this kind of online harassment would
be more than just symbolic. It would establish a stronger industry intolerance for
tortious hate speech, cyberstalking and harassment that would affect putative
harassers and, in all likelihood, reduce the number of victims and the extent of
their harassment.
Facebook, in fact, is already running programs to streamline the removal of
nonconsensual porn in other countries. In November 2017, Facebook announced
an experimental strategy in Australia to “help prevent non-consensual intimate
images from being posted and shared anywhere on Facebook, Messenger and
Instagram.”
219
In this pilot program, users are asked to send Facebook the images
they are concerned about via Messenger. Facebook then “hashes” those images,
giving them a unique digital fingerprint that can be used to stop further
distribution of those images. In this program, Facebook is partnering with an
Australian government agency that focuses on electronic safety. A study released
in May 2017 reported that 23 percent, or one in five, Australians between the age
of 16 and 49 reported being subject to “image-based abuse.”
220
This was defined to
include images showing breasts or genitals, including pictures taken during
showering or bathing and “upskirting and downblousing.”
221
Supporters lauded the program because it allows both victims of
nonconsensual porn and people who are worried about becoming nonconsensual
porn victims to take preventative action.
222
Critics expressed concern, among other
things, that Facebook’s solution required victims and potential victims of
nonconsensual porn to post their images proactively, trusting that Facebook staff
fight-against-violent-crime-1511528400.
219. The Facts: Non-Consensual Intimate Image Pilot, F
ACEBOOK: NEWSROOM (Nov. 9, 2017)
https://newsroom.fb.com/news/h/non-consensual-intimate-image-pilot-the-facts/.
220. Nicola Henry et al., N
OT JUST ‘REVENGE PORNOGRAPHY’: AUSTRALIANS’ EXPERIENCES OF
IMAGE-BASED ABUSE: A SUMMARY REPORT (2017) https://www.rmit.edu.au/content/dam/rmit
/documents/college-of-design-and-social-context/schools/global-urban-and-social-
studies/revenge_porn_report_2017.pdf.
221. Id.
222. Olivia Solon, Facebook Asks Users for Nude Photos in Project to Combat Revenge Porn, T
HE
GUARDIAN (Nov. 7, 2017) https://www.theguardian.com/technology/2017/nov/07/facebook-revenge-
porn-nude-photos.
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would handle them appropriately, when Facebook has shown itself repeatedly to
be something less than trustworthy.
223
One observer suggested that a better
approach would not involve disclosure of the image at all, but rather a telephone
call to Facebook alerting them to the problem.
224
Any approach that does not
specify a particular problematic image, however, is unlikely to succeed. Whether
the monitoring, prohibition and/or removal of nonconsensual porn is done by a
government agency, a social media company such as Facebook, or a combination
thereof, it will be critical to know which images are nonconsensual and which are
consensual so that the removal of images does not intrude into the realm of
voluntary self-expression.
Another solution ICPs should consider is the development of an internal
flagging system that warns likely harassers that they may be about to break the
law before they post. One scholar has proposed that web hosts might warn users
who are about to post shaming language of the consequences of doing so by using
algorithms and filters designed to detect that activity.
225
Warning potential
nonconsensual porn posters of the potential consequences of their actions would
make it easier to argue that those who post nonconsensual porn regardless of the
warnings have the mens rea of recklessness, which the Model Penal Code defines
as “consciously disregard[ing] a substantial and unjustifiable risk that the material
element exists or will result from this conduct.”
226
C. ICPs Should Be Compelled to Deter Nonconsensual Porn
Facebook’s voluntary efforts to deter nonconsensual porn work as long as
Facebook chooses to engage in them. For these methods to be enduringly effective,
however, they must be compulsory. In order to make such measures compulsory,
it may be necessary to amend the CDA to remove the shield it currently provides
for ICPs. One of the assumptions underlying the passage of the CDA was that it
would be too cumbersome for online service providers to monitor their users’
posts for potentially harmful content.
227
Given the subsequent developments in
search technology, that is no longer necessarily true.
More than twenty years after the enactment of the CDA, it is time to
reexamine the wisdom of that law’s broad shield. As other scholars have
observed, the CDA no longer makes sense as a matter of technology policy. Some
have suggested that Congress amend the CDA to include notice and takedown
provisions for online harassment, similar to those of the Digital Millennium
Copyright Act.
228
Such provisions could require social media companies and ISPs
223. Van Badham, Sending In Our Nude Photos to Fight Revenge Porn? No Thanks, Facebook,
T
HE GUARDIAN: OPINION (Nov. 12, 2017) https://www.theguardian.com/commentisfree/2017/
nov/13/sending-in-our-nude-photos-to-fight-revenge-porn-no-thanks-facebook.
224. Id. (stating “[y]ou shouldn’t need to send naked pictures of yourself to register an abuse. All
you should have to do is make a phone call and action should be taken on your behalf”).
225. Kristine L. Gallardo, Taming the Internet Pitchfork Mob: Online Public Shaming, the Viral Media
Age, and the Communications Decency Act, 19
VAND. J. ENT. & TECH. L. 721, 732 (2017).
226. M
ODEL PENAL CODE §2.02 (Am. Law Inst. 1981).
227. Zeran, 129 F.3d at 330-31.
228. See Olivera Medenica & Kaiser Wahab, Does Liability Enhance Credibility? Lessons from the
DMCA Applied to Online Defamation, 25
CARDOZO ARTS & ENT. L.J. 237, 239 (2007) (advocating for
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PROTECTING DOES AND OUTING MOBSTERS 187
to remove online harassment when it is flagged as such. Under both proposals,
social media companies and ISPs would take a far more active role in detecting
and deterring online harassment. While the CDA presumes that ICPs and social
media companies should take a passive role with regard to online content, these
more recent proposals, together with the sharp rise in frequency and corrosiveness
of online harassment, envision a more active and socially responsible role for web
hosts.
The United States may not be the first country to hold ICPs legally responsible
for doing too little to stop the spread of nonconsensual porn. Recent proceedings
in Northern Ireland suggest that Facebook may come under greater legal pressure
to deter nonconsensual porn elsewhere in the world. In January 2018, the High
Court in Belfast confirmed the settlement of a case in which a 14 year old victim of
nonconsensual porn sued Facebook for failing to block the re-publication of her
photo after she notified the company that it was taken without her consent.
229
Because there was no judgment against Facebook, the case has no precedential
value, but it suggests that there is a greater risk of potential liability for an ICP’s
failure to stop nonconsensual porn images from spreading than many industry
analysts may have expected.
230
In the wake of the settlement, lawyers reported
being “deluged” with queries from nonconsensual porn victims interested in
suing Facebook.
231
In the United States, some courts are already starting to question whether the
CDA should provide a complete shield for ICPs in similar cases. In at least one
case, a court has held a social media company liable for failure to warn some users
about likely harm from other users. It concerned a model who alleged that a
website was negligent under California law for failing to warn her about two
website users’ practice of using the site to drug and rape models like her.
232
In that
case, plaintiff Jane Doe subscribed to the website Model Mayhem, a networking
site for models, operated by defendant Internet Brands.
233
Two men used the site
to identify women, whom they contacted posing as agents, and lure them to a fake
modeling audition in Florida.
234
The men then drugged their victims, raped them,
and videotaped their acts for distribution as pornography.
235
Doe became one of
these victims.
236
She alleged that Internet Brands knew about the rape scheme but
DMCA-styled notice and takedown provisions to be added to Section 230 of the CDA).
229. Alan Erwin, Girl (14) Settles Landmark Action Against Facebook Over Naked Images, I
RISH TIMES
(Jan. 9, 2018), https://www.irishtimes.com/news/crime-and-law/courts/high-court/girl-14-settles-
landmark-action-against-facebook-over-naked-images-1.3349974.
230. See Jamie Rigg, Facebook Settles Out of Court in Unique Revenge Porn Case, E
NGADGET (Jan. 16,
2018), https://www.engadget.com/2018/01/16/facebook-revenge-porn-settlement/ (“For anyone
considering a similar civil suit against Facebook, Twitter or others, there’s now an example of
someone sorta winning. Not a precedent, but something close.”)
231. Henry McDonald, Facebook Warned It Faces Legal Action From ‘Revenge Porn’ Victims, G
UARDIAN
(Jan. 12, 2018), https://www.theguardian.com/technology/2018/jan/12/facebook-faces-legal-action-
from-victims-of-revenge-porn.
232. Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir. 2016).
233. Id.
234. Id.
235. Id.
236. Id.
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failed to warn website users of the risks.
237
Internet Brands had moved to dismiss
her claims as barred by the CDA, and the district court granted its motion.
238
The
Court of Appeals for the Ninth Circuit reversed.
239
In holding for Doe, the court concluded that the CDA did not shield Internet
Brands from negligence liability because Doe did not seek to hold it liable as the
“publisher or speaker” of any particular content.
240
Instead, Doe alleged that the
Internet Brands had a duty to warn users of the dangers of the rape scheme, a duty
it could have fulfilled by posting a notice on the Model Mayhem website.
241
The
court reasoned that an “alleged tort based on a duty that would require such a self-
produced warning falls outside of” the protections of the CDA.
242
In so holding,
the court noted that its conclusion was consistent with one of the CDA’s core
policies, “to provide ‘[p]rotection for ‘Good Samaritan’ blocking and screening of
offensive material.’” Given that purpose, it stated, “a website should be able to act
as a ‘Good Samaritan’ to self-regulate offensive third party content without fear of
liability.”
243
In light of the court’s ruling on Doe’s negligence claim, the court did
more than allow a website to act as a Good Samaritan; it also suggested the
possibility that the website has a duty to warn once a provider knows or should
have known of a likely danger to users.
There are many ways for a website to know of such potential dangers. Most
social media companies have established a method by which people can alert the
company to potentially dangerous or inappropriate content.
244
Future plaintiffs
using this case as precedent might argue that once a website is on notice of likely
potential harm, its duty to warn under state negligence laws may be triggered.
After concluding that the CDA did not bar Doe’s claims, the court in Internet
Brands dismissed the claim that its holding might have an impermissible chilling
effect on online speech. It noted that the CDA does not provide a general shield
against liability for online service providers. “Congress has not provided an all-
purpose get-out-of-jail-free card for businesses that publish user content on the
internet, though any claims might have a marginal chilling effect on internet
publishing businesses.” By articulating some of the CDA’s limitations, this case
illuminates the possibility that users might hold websites more accountable for the
harms they knowingly, or negligently, facilitate.
Social media companies may be compelled to remove images when their
rightful owners can establish that their copyright has been violated. As one
observer noted, however, “using copyright law to combat revenge porn is a bit
237. Internet Brands, Inc., 824 F.3d at 848.
238. Internet Brands, Inc., 824 F.3d at 846.
239. Internet Brands, Inc., 824 F.3d at 853.
240. Internet Brands, Inc., 824 F.3d at 851.
241. Id.
242. Id.
243. Internet Brands, Inc., 824 F.3d at 850.
244. See, e.g., Reporting Abuse, F
ACEBOOK, https://www.facebook.com/help/1753719584844061?
helpref=hc_global_nav (last visited Jan. 6, 2018) (noting that “[w]hen something gets reported to
Facebook, we review it and remove anything that goes against the Facebook Community Standards”
and providing reporting link).
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PROTECTING DOES AND OUTING MOBSTERS 189
like using tax law to go after Al Capone.”
245
Another option would be the
establishment of maximum response times to user allegations of tortious content.
As noted above, most social media companies have established a method by which
people can alert the company to potentially dangerous or inappropriate content.
246
Whether and when the companies respond to such alerts, however, is up to them.
Social media companies might voluntarily institute time limits by which they
ensure a detailed written response to user alerts, possibly including a statement as
to what, if any, actions were taken as a consequence of the alert. Alternatively,
states or the Federal Communications Commission might compel social media
companies to institute both the alert service and a maximum response time.
In light of the many benefits of online anonymity, it would be unwise as a
matter of policy and likely impossible as a matter of law to do away with it
entirely. That said, the increasing danger of online harassment, stalking, and other
potentially serious harms underscore the need to revisit the issue of whether social
media companies and ISPs should be legally required to make it easier for abusive
posters to be unmasked.
D. Reforms Should Ensure That Perpetrators Account For Their Actions
ICPs should not have sole responsibility for curbing nonconsensual porn
simply because they can police it more effectively than the legal system alone. One
danger of shifting too much responsibility to ICPs for nonconsensual porn, or any
other social ill, is that it risks attributing too little responsibility to the individual
perpetrators themselves. Ultimately, it should be the people who post
nonconsensual porn who are the focus of educational, social and regulatory
reforms. No comprehensive program to stem the spread of nonconsensual porn
should in effect absolve the people who choose to post nonconsensual private
images of other people on the internet, as it is those individual decisions to post
that create the harm in the first place.
Clearer legal definitions of nonconsensual porn and its consequences are
necessary to effect a better balance between the rights of nonconsensual porn
victims and accused perpetrators without unduly burdening ICPs. A significant
part of the solution, however, lies beyond what legal reforms can accomplish, and
may include broader educational efforts to emphasize the wrongs and harms of
nonconsensual porn as well as public service announcements and other non-legal
strategies. In light of the prevalence of nonconsensual porn, the legal and cultural
permissiveness about anonymity online in the U.S., and the limitations that such
permissiveness places on even well intentioned regulatory reform, focusing on the
individual posters alone is unlikely to be effective at least in the short term.
Recalibrating our standards of anonymity for nonconsensual porn victims in both
civil and criminal cases, and reassessing the extent to which ICPs should be liable
for nonconsensual porn that they know or should know they are hosting and
promulgating, is the best next step towards eliminating nonconsensual porn.
245. Talbot, supra note 111, at 56.
246. Reporting Abuse, supra note 240.
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V.
CONCLUSION
The sharp rise and high cost of nonconsensual porn impose a significant
burden on members of society who are already on the political margins. They
demand a qualitative change in our legislative and technological responses to this
form of online speech. The lack of coherent state regulation of nonconsensual
porn, despite its recent growth, underscores the need for greater protection of the
identities of nonconsensual porn victims. So too does the lack of anonymity
provisions in the IPPA and earlier efforts to regulate nonconsensual porn at the
federal level. At the same time, legal protections of internet service providers and
social media companies do too much to shield online perpetrators and too little to
allow victims of anonymous harassment to justice.
Traditional assumptions about and arguments in favor of victim
identification and online anonymity may, in the context of nonconsensual porn,
be superseded by the necessity of technological and employment practice
developments that flip those values. A comprehensive improvement in access to
justice for nonconsensual porn victims would permit both more pseudonymity for
victims and less anonymity for alleged offenders. It should be more difficult for
anonymous online harassers to remain anonymous and it should be easier for their
victims to sue as anonymous plaintiffs. In addition, ICPs should be compelled to
do more to uncover and deter anonymous online harassment using the same tools
and collaborative techniques they already use to fight terrorism. As the spread and
damages of nonconsensual porn have changed, the public and private response to
such harassment should change as well in order to provide greater protection to
the most marginalized victims. If there is a right to anonymous speech online, that
right should be superseded by the right to safely bring an alleged nonconsensual
porn poster to justice.
While ICPs have begun to change their practices regarding nonconsensual
porn posting, more must be done. It is only when the structures that facilitate the
rise of nonconsensual porn are required to stem that spread, and when its victims
are confident in the protections afforded by the legal system, that the intent behind
the rising regulation of nonconsensual porn truly can be put into effect.
