2016.020: The Intimate Privacy Protection Act of 2016

Via scribd:

(a) IN GENERAL.—Whoever knowingly uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to distribute a visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or of the naked genitals or post-pubescent female nipple of a person, with reckless disregard for the person’s lack of consent to the distribution, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) EXCEPTIONS.—

(1) LAW ENFORCEMENT AND OTHER LEGAL PROCEEDINGS.—This section—

(A) does not prohibit any lawful law enforcement, correctional, or intelligence activity;

(B) shall not apply in the case of an individual reporting unlawful activity; and

(C) shall not apply to a subpoena or court order for use in a legal proceeding.

(2) VOLUNTARY PUBLIC OR COMMERCIAL EXPOSURE.—This section does not apply to a visual depiction of a voluntary exposure of an individual’s own naked genitals or post-pubescent female nipple or an individual’s voluntary engagement in sexually explicit conduct if such exposure takes place in public or in a lawful commercial setting.

(3) CERTAIN CATEGORIES OF VISUAL DEPICTIONS EXCEPTED.—This section shall not apply in the case of a visual depiction, the disclosure of which is in the bona fide public interest.

(4) TELECOMMUNICATIONS AND INTERNET SERVICE PROVIDERS.—This section shall not apply to any provider of an interactive computer service as defined in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. 230 (f)(2)) with regard to content provided by another information content provider, as defined in section 230(f)(3) of the Communications Act of 1934 (47 U.S.C. 230(f)(3)) unless such provider of an interactive computer service intentionally promotes or solicits content that it knows to be in violation of this section.

(c) DEFINITIONS.—In this section:

(1) Except as otherwise provided, any term used in this section has the meaning given that term in section 1801.

(2) The term ‘visual depiction’ means any photograph, film, or video, whether produced by electronic, mechanical, or other means.

(3) The term ‘sexually explicit conduct’ has the meaning given that term in section 2256(2)(A).

Let’s fisk it.

Whoever knowingly uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce…

This is the interstate-commerce hook that purports to give federal courts jurisdiction.

…to distribute a visual depiction…

The distribution of visual depictions is speech. Remember that a content-based restriction on speech is presumptively void unless the speech falls into a category of unprotected speech.

…of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or…

This makes the restriction content-based. The fact-finder has to look at the image to determine whether it violates the statute. A visual depiction of an identifiable person playing croquet does not trigger the statute, but a depiction of an identifiable person having sex does.

… of the naked genitals or post-pubescent female nipple of a person, …

I know that legislators aren’t very good at grammar, but I don’t see how this can be read other than to mean that two sorts of images are prohibited:

  1. A visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or
  2. A visual depiction of the naked genitals or post-pubescent female nipple of a person.

So a depiction of an unidentifiable person engaging in sexually explicit content does not trigger the statute unless the depiction includes his naked pink parts, in which case it doesn’t matter that he is unidentifiable. This statute, like others, will capture the innocent behavior of sharing naked baby pictures.

…with reckless disregard for the person’s lack of consent to the distribution…

This is the culpable mental state, or mens rea, requirement. It’s not very strong. While it’s greater than Mary Anne Franks’s proposed “knew or should have known” (negligence) standard, it doesn’t satisfy Danielle Citron’s demand that “it is crucial to craft narrow statutes that only punish individuals who knowingly and maliciously invade another’s privacy and trust.”

…shall be fined under this title or imprisoned not more than 5 years, or both.

Five years in prison for reckless conduct. Five years for sharing naked-baby pictures on Facebook. Five years for conduct that may or may not have caused some real-world harm.

(b) EXCEPTIONS.—

(1) LAW ENFORCEMENT AND OTHER LEGAL PROCEEDINGS.—This section—

(A) does not prohibit any lawful law enforcement, correctional, or intelligence activity;

(B) shall not apply in the case of an individual reporting unlawful activity; and

(C) shall not apply to a subpoena or court order for use in a legal proceeding.

The usual authoritarian exceptions: what is forbidden and presumed harmful when engaged in by the people is expressly permitted to the state.

(2) VOLUNTARY PUBLIC OR COMMERCIAL EXPOSURE.—This section does not apply to a visual depiction of a voluntary exposure of an individual’s own naked genitals or post-pubescent female nipple or an individual’s voluntary engagement in sexually explicit conduct if such exposure takes place in public or in a lawful commercial setting.

The commercial-porn-and-exhibitionism exception.

(3) CERTAIN CATEGORIES OF VISUAL DEPICTIONS EXCEPTED.—This section shall not apply in the case of a visual depiction, the disclosure of which is in the bona fide public interest.

The you-can-trust-government provision. I discuss it here; as Professor Neil Richards writes, “the power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor.”

(4) TELECOMMUNICATIONS AND INTERNET SERVICE PROVIDERS.—This section shall not apply to any provider of an interactive computer service as defined in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. 230 (f)(2)) with regard to content provided by another information content provider, as defined in section 230(f)(3) of the Communications Act of 1934 (47 U.S.C. 230(f)(3)) unless such provider of an interactive computer service intentionally promotes or solicits content that it knows to be in violation of this section.

I’ll leave this to the Section 230 experts.

(c) DEFINITIONS.—In this section:

(1) Except as otherwise provided, any term used in this section has the meaning given that term in section 1801.

(2) The term ‘visual depiction’ means any photograph, film, or video, whether produced by electronic, mechanical, or other means.

(3) The term ‘sexually explicit conduct’ has the meaning given that term in section 2256(2)(A).

Here, for future reference, is that definition:

(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;

There was a spate of state revenge-porn statutes passed in the last couple of years. There have not been many of prosecutions under these statutes. This suggests that the problem is not as great as the criminalizers led the state legislatures to believe.

The Intimate Privacy Protection Act of 2016 is a content-based restriction on speech, unconstitutional under current Supreme Court caselaw. In order for the Supreme Court to uphold it, it would have to recognize a category of historically unprotected speech that includes nonconsensual pornography. Check out my discussion of defining such a category here, beginning at “So how would we…”.

IPPA’s advocates have written a presumptively unconstitutional statute. They have not suggested a path to constitutionality. They address a problem that has not been overwhelming state criminal-justice systems.

Perhaps there are better uses for Congress’s time.

 

1 Comment

  1. Your critique suggests a way that this bill could be rewritten that might accomplish its goals.

    Suppose Congress simply amends copyright law to say that, if I take a photo or video of you (which meets the content requirements in the bill as written), the copyright in that picture belongs to you, not me, unless transferred by express written contract. (And for pictures showing more than one person, all of them would have to sign off on any such contract.)

    This would enable you to use the DMCA takedown process to order revenge-porn sites to remove your pictures from display.

    I think that would get the job done and would be quite moral. But would it be constitutional? IANAL.

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