By Howard Fischer | Capitol Media Services/Ahwatukee Foothills News
State officials have agreed not to pursue anyone from book sellers to Internet posters under a new “revenge porn” law, at least not for the time being.
The order signed late Wednesday by U.S. District Court Judge Susan Bolton gives Rep. J.D. Mesnard, R-Chandler, a chance to recraft the controversial measure to see if he can address the concerns of challengers that the law violates the First Amendment. If Mesnard is successful, the lawsuit goes away.
Mesnard told Capitol Media Services he’s willing to give it a try. And he already has some ideas in mind.
Comments by Chris Ingle, Rose Law Group Cyber Law Attorney
The State of Arizona is trying to do the right thing, but is not approaching it in the right manner. Earlier this year, the Legislature passed a law making it a felony to publish what is commonly known as “revenge porn.” Revenge porn is a relatively recent phenomenon. In today’s age of smartphones, Webcams, and digital cameras it is easy to take a photo of just about anything and post it online. Lots of people, mostly younger but some older, have taken photos of their partners in nude or semi-nude states. If the relationship ends badly, sometimes one party will post those images online to get “revenge” upon their ex. The victims of revenge porn often face public criticism, shame, and embarrassment. Worse, once a photo gets onto the Internet it becomes very hard to get it back down.
A further concern is the evolving nature of facial recognition software. There are already cell phone apps that will scan the faces in photographs and compare them to social media accounts and similar Websites to try to identity the subject. These applications are surprisingly accurate. The fear is that someday a person in a pornographic photograph will be subjected to image-recognition software, people will find out his or her true name, and then every time a person searches the Internet for that person, they will find these unwanted revenge porn images along with everything else. This could make it very hard for a person to put a compromising incident behind them, start a new relationship, or obtain a job (or possibly easier to find a job, depending on how creepy the employer is).
There is a growing number of young people who have experienced a significant amount of emotional harm from revenge porn. Some have withdrawn from schools to escape jeering classmates while others have enrolled in counseling or even attempted suicide. There are also a number of Websites in the darker corners of the internet that have begun to specialize in hosting revenge porn. State legislatures across the nation have become aware of this problem and have enacted different types of laws to try to combat this type of exploitation. California recently passed a revenge porn law that seems to be working fairly decently. Arizona passed a similar law this year, but its law was more broadly worded and faced an immediate legal challenge from the ACLU. And for good reason. The law has good intentions, but it is way too broadly worded.
Under the current Arizona version of the law, anyone who displays an image of a nude or semi-nude person would face several years in prison unless they had specific permission from the subject. That’s too far. There are a lot of Websites that aggregate photos from other websites. A situation could arise where permission was obtained from the subject, but not everyone who publishes the image has a copy of that consent form. Under the law those publishers would become felons. Alternatively, a situation could arise where the subject of the photograph does not care that the image was published, but the state decides to prosecute the publisher anyway. After all, when a law is criminal in nature, the state (not the subject of the photograph) is the entity that charges a person with a crime. If authorities exercised discretion when deciding who to charge the law could probably be enforced in a manner consistent with its intention, but historically police and prosecutors have not been models of restraint. The more common situation is to charge anyone who breaks any law and then tell a jury that they must enforce the law as it is written, even if they personally disagree with it.
Given that someone could face several years in prison under this revenge porn law, it is essential that the statute be narrowly tailored to outlaw only the specific conduct that is really a problem. Unfortunately in this case the legislature took the opposite approach – they tried to make the law flexible enough to apply to a lot of different situations. In so doing they ended up criminalizing a lot of behavior that could or could not be related to revenge porn. That is regrettable, because this was a law with a laudable purpose and which could do a lot of good if properly written. The Legislature should consider narrowing the law to a very specific set of circumstances, and then expend it as necessary until it accomplishes its purpose. Until then, revenge porn in Arizona will exist in a sort of legal limbo where it is technically a felony but no one is allowed to charge the perpetrators with a crime.
Related:
