Various cybercrimes are gaining in prominence as states pass new laws, and prosecutors target certain types of conduct. New terms like “cyberharassment” and “cyberstalking” are becoming common, and some states have passed laws against posting explicit photos of another person online without his or her permission, commonly known as “revenge porn.” Criticisms of the laws include concerns that they could apply beyond the egregious incidents that led to their passage. Several recent incidents demonstrate how enforcement of these laws might work.
Prosecutors in Seattle, Washington charged a man this summer in connection with allegedly posting explicit photos of a woman to a “revenge porn” website and then threatening to send the photos to the woman’s family and friends. According to local news coverage, the woman had hired the man to transfer data from one computer hard drive to another about three years ago. Among the data on the computer were nude photos of herself. The man allegedly kept copies of the photos and began threatening her last year. The threats allegedly escalated from further distribution of the pictures to sexual assault. He was charged with one count of computer trespass in the first degree, Wa. Rev. Code § 9A.52.110, and four counts of cyberstalking, id. at § 9.61.260. According to court records, he pled guilty to all counts in early December 2014.
Although the Washington case involved a “revenge porn” website, the charges only dealt with the acts of obtaining photos from the woman’s hard drive and making online threats. California has made it illegal to post explicit photos of a person online without his or her permission. Cal. Penal Code § 647(j)(4). The statute originally only applied to pictures or videos taken by someone else, but an amendment to the law signed by the governor in September 2014 expands it to include “selfies.” A Los Angeles man became the first person to be convicted under the new statute, and was sentenced to one year in jail on December 1, 2014. Texas has no comparable “revenge porn” law, although a few states have followed in California’s footsteps. See N.J. Rev. Stat. § 2C:14-9(c).
The online release of hundreds of explicit photos of female celebrities last summer, which are believed to have been obtained from Apple’s iCloud network, may be the most famous example of this practice. It remains the subject of an FBI investigation for possible violations of federal hacking, wiretapping, and identity theft laws. See 18 U.S.C. §§ 1028, 1030, and 2510 et seq. In 2012, a man was convicted and sentenced to 10 years’ imprisonment under the wiretapping statute for hacking various celebrities’ personal email accounts and publishing explicit photos found there. The person or persons behind the 2014 iCloud incident could additionally face federal child pornography charges, 18 U.S.C. § 2252A, since several of the people in the leaked photos were under the age of 18.
Cyberstalking statutes have been criticized for criminalizing conduct that should fall under the First Amendment’s free speech protections, such as speech that might be rude or offensive but that does not fall within any of the free speech exceptions identified by the U.S. Supreme Court. “Revenge porn” laws face similar criticisms, as well as due process concerns regarding elements like a lack of permission to post photos, the required intent, and the precise definition of words like “private” or “intimate.”
Criminal defense attorney Michael J. Brown has represented west Texas defendants in criminal cases at the state and federal level for more than 20 years. To schedule a confidential consultation with a skilled and experienced advocate, contact us today online or at (432) 687-5157.
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