Problems of Proof for Revenge Porn Accusations

Having only recently written in advocacy of criminalizing revenge porn, I thought it would be appropriate for me to take a step back (or forward, depending on how you want to look at it) to consider the practical problems of a revenge porn prosecution. These problems include very real difficulties in assigning and proving blame, and I think the following hypothetical best illustrates how awry things may go when accusing someone of revenge porn:

Armondo, a Marine, and Bethany, an elementary school teacher, met while in college. They have been dating for three years and are madly in love. However, like many relationships involving a person in the military, Armondo and Bethany have had to endure long breaks away from each other when Armondo is deployed across the world.

In Armondo’s latest tour, Bethany notices that he has become more distant from her and she is worried that the time spent apart is starting to take a toll on their relationship. Although she has previously denied his requests to send him a naughty picture of herself, Bethany spontaneously sends Armondo a few of these pictures with the hopes that this effort will reignite their flame from afar.

Yet, Armondo’s latest bout of war has changed him and, when he returns home, Bethany and Armondo cannot stop fighting. They decide to break up, and they are no longer on good terms.

Flash forward a few months to when, Paul, the principal of the elementary school where Bethany teaches, receives a phone call from an anonymous person who tells Paul that Bethany is a “slut who should not be teaching children.” Paul, both shocked and outraged by the verbal attack on his teacher, asks the caller’s name, but the anonymous caller only responds, “Google her name, and you’ll understand,” and then hangs up.

Paul reluctantly sits at his desk and types Bethany’s name into the search bar. To his dismay, five different search results appear that claim to have nude images of Bethany. He clicks on one of the results, and is re-directed to a website that has a gallery full of nude pictures of Bethany listed alongside her name, her social media profiles, and even the school at which both Paul and she work.

Paul knows that the bright, young and conservative woman he has worked for the past 5 years would not post these herself. But as the calls continue and news of the pictures begins to more widely disseminate, school district administrators are growing concerned with the fact that pornographic pictures of a teacher are appearing when a person searched the school’s name. Although Paul earnestly tries to defend Bethany and her position, he is forced to succumb to parents’ demands that Bethany not teach young children who can Google nude images of her, and Bethany is fired.

Unable to find employment in the only profession she loved, Bethany contacts a lawyer to pursue legal action. After telling Bethany that she cannot sue the websites, but may bring charges against the original poster, the lawyer asks, “So, do you know who posted the pictures?”

Now, consider that any one of these 5 things occurred in between Armondo and Bethany’s breakup and the anonymous phone call to Paul:

    1. Armondo posts Bethany’s naughty photos on a revenge porn website using a public library’s computer.
    2. Armondo’s computer gets hacked and the hacker posts Bethany’s naughty photos to a revenge porn website.
    3. The password-protected photo hosting website that Bethany used to share her naughty photos with Armondo is hacked and the photos then appear on the revenge porn website.
    4. Bethany begins dating Cassidy and, after a few months, she shares the same naughty photos with him. Cassidy then uses an anonymous-IP server to post the photos on a revenge porn website while the two are still together, and blames Armondo.
    5. Armondo’s laptop crashes, and he leaves his laptop at a computer store for four days to repair what he is told is an issue with the laptop’s fan. Bethany’s naughty photos, which were saved on Armondo’s laptop, are uploaded from Armondo’s computer to a revenge porn website by one of the many independently contracted technicians working at the store.

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Who Is To Blame?

While I can go on with these scenarios, I think it suffices to say that these scenarios illustrate that there are many serious issues surrounding the validity of a revenge porn prosecution. For starters, like in scenario 1, determining the IP-address (and therefore the computer) from which the photos were posted may not always lead to the culprit. In fact, like in scenario 5, the IP-address might even lead to an innocent person being prosecuted.

Moreover, there are many times where, like in scenario 4, a person can hide their IP-address, leaving no trace of the original poster’s origins.

Finally, like in scenarios 2 and 3, the real culprit may be a random hacker affiliated to neither party, and, in a rush to prosecute the only person that is known to have access to the photos, the victim may again bring charges against an innocent person.

AJ Afkari | techlawgic

A.J. Afkari is a Los Angeles attorney who specializes in legal matters related to the Internet, technology, and all things intertwined. He received his B.A. from UCLA, his J.D. from USC, and his A.J. from his mother.

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Problems of Proof for Revenge Porn Accusations | techlawgic
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