“We do not live in a world where thousands of websites are devoted to revealing
private medical records, credit card numbers, or even love letters. By contrast,
‘revenge porn’ is featured in as many as 10,000 websites, in addition to being
distributed without consent through social media, blogs, emails, and texts.
There is a demand for private nude photos that is unlike the demand for any
other form of private information. While nonconsensual pornography is not a
new phenomenon, its prevalence, reach, and impact have increased in recent
years in part because technology and social media make it possible to
‘crowdsource’ abuse, as well as make it possible for unscrupulous individuals
to profit from it. Dedicated ‘revenge porn’ sites and other forums openly solicit
private intimate images and expose them to millions of viewers, while allowing
the posters themselves to hide in the shadows.” Franks, supra, at 1260-61.
Because the nonconsensual dissemination of private sexual images “so often
involves the Internet and social media, the public, law enforcement, and the
judiciary sometimes struggle to understand the mechanics of the conduct and the
devastation it can cause.” Citron & Franks, supra, at 347.
¶ 20
For example, in the course of its analysis, the circuit court speculated as follows:
“[W]hen a girlfriend texts a nude selfie to a third party—her boyfriend—she
gives up all expectations of privacy in the images. And if she cannot reasonably
expect that the image remain private, then didn’t the act of sharing it in the first
place demonstrate she never intended the image to remain private?” (Emphasis
in original.)
Such postulating is refuted by reams of scholarship. Moreover, the above comments
reflect a fundamental misunderstanding of the nature of such communications.
Given the circuit court’s factual starting point, the boyfriend to whom a nude selfie
is sent is the second party to the private communication—not a third party. As a
consequence, a girlfriend who transmits such a photo does not automatically
relinquish “all expectations of privacy in the images,” as the circuit court
hypothesized. Contrary to the circuit court’s conclusion, the sharing of a private
sexual image in a personal and direct communication with an intended recipient
does not demonstrate that the transmission was never intended to remain private.
-6-
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