Operator of “Revenge Porn” Website Sentenced to Two Years in Federal Prison

tookapic [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayThe internet and other digital technologies have resulted in a vast array of legal challenges. One issue that has received considerable recent attention is “revenge porn,” the publication or distribution of intimate photos of a person, usually female, without that person’s consent. More than half of the states in the U.S., including Texas, have enacted laws imposing civil and/or criminal liability for acts commonly associated with revenge porn, but the difficulty in defining the phenomenon leads to concerns about potential First Amendment problems. At the federal level, prosecutors have successfully used laws related to hacking, such as in a case alleging a scheme that involved hacking email accounts to steal photographs and posting them to a website. United States v. Moore, et al., No. 2:13-cr-00917, indictment (C.D. Cal., Dec. 20, 2013). The two defendants each received prison sentences of about two years.

The distribution of intimate photos without the subject’s consent can occur in at least two different ways. In some cases, the photos originate from a romantic or intimate relationship between the person depicted and the person distributing the photos. The term “revenge porn” is based on the idea that this is a way to get back at the other person for breaking off the relationship. This clearly constitutes a violation of trust, and it is morally reprehensible by any measure. The legal standard for criminalizing such conduct, however, is not particularly clear.

Other cases involve the theft of intimate photos from a person’s computer, mobile device, or online account. This type of case fits much more easily into existing legal frameworks regarding cyber crime, and it has resulted in many of the successful prosecutions to date.

The Texas Legislature enacted S.B. 1135, which provides both civil and criminal penalties in revenge porn cases, during the 2015 legislative session. It prohibits the “unlawful disclosure or promotion of intimate visual material,” which it defines as materials that depict a person with their “intimate parts exposed or engaged in sexual conduct.” Tex. Pen. Code § 21.16(b)(1). It further states that the material must have been produced with “a reasonable expectation that the visual material would remain private.” Id. at § 21.16(b)(2). The subject’s consent to the initial creation of the material is not a defense to a charge of unlawfully disclosing it. Id. at § 21.16(e).

Criticisms of these laws tend to focus on the difficulty of defining “revenge porn” and on case law that consistently strikes down content-based restrictions on speech. As repugnant as revenge porn may be, courts have frequently held that the government cannot prohibit speech just because many or most people find it loathsome. See, e.g. United States v. Stevens, 559 U.S. 460 (2010). Prosecutors have found more success with laws against hacking or cyberstalking. See United States v. Osinger, 753 F.3d 939 (9th Cir. 2014).

The scheme alleged by prosecutors in the Moore case involved one defendant hacking email accounts to obtain photos, which the other defendant posted to a website. Both defendants pleaded guilty to unauthorized access to a protected computer, 18 U.S.C. §§ 1030(a)(2)(C), (c)(2)(B)(i); and aggravated identity theft, id. at § 1028A(a)(1). A court sentenced them each to approximately two years in prison.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Cyber crime attorney Michael J. Brown has fought for people’s rights against criminal charges in west Texas state and federal courts for more than 20 years. Contact us online or at (432) 687-5157 today to schedule a confidential consultation to see how we can assist you.

More Blog Posts:

Nine People Indicted for Alleged Insider Trading, Using Information Allegedly Obtained by Hacking, Texas Criminal Lawyer Blog, October 30, 2015

Police Apprehend Fugitives by Tracking Use of Online Music, Video Streaming Services, Texas Criminal Lawyer Blog, October 30, 2015

Theft and Misuse of Computer Data Are Becoming Major Areas of Cybercrime Prosecutions, Texas Criminal Lawyer Blog, December 17, 2014

Photo credit: tookapic [Public domain, CC0 1.0], via Pixabay.