Revenge pornography websites are a reminder that preying on the vulnerable has long been big business. And while various laws protect people against scam artists, extortionists, manipulators, and other unscrupulous enterprises, the law has not been able to keep up with all malicious businesses.
Those who distribute revenge porn rake in considerable profits while largely escaping the long arm of the law. Until now.
Federal and state law enforcement is starting to treat companies that make money from the release of confidential communications as illegal enterprises. These actions send the message that businesses cannot encourage parties to breach promises of confidentiality without bearing responsibility for the resulting damage.
The Federal Trade Commission announced last week that it has reached a settlement with the Craig Brittain, founder of the infamous revenge-porn site Is Anybody Down. Charges against Brittain focused on his website’s solicitation of individuals’ nude photos and contact information and the disclosure of that information to the public. (After the FTC announcement last week, Brittain posted an apology on the site.) The FTC argued in its complaint that it was unfair for Brittain to exploit personal information shared in confidence for commercial gain. The FTC also accused Brittain of tricking women into sharing nude photos with him by impersonating a woman and vowing to keep the photos confidential. In the settlement agreement, Brittain promised to get out of the business of revenge porn. He pledged not to disclose anyone’s nude images online without first getting their express written consent.
This is the FTC’s first case against a revenge-porn operator. Which makes it a big deal for several reasons. Generally speaking, the law has struggled to address emerging privacy threats, including invasions of sexual privacy. Free speech objections have short-circuited legislative proposals limiting disclosures of truthful information. Online publishers also enjoy immunity from liability for user-generated content under federal law. For these reasons, the law has been unable to fully protect individuals from harmful invasions of privacy, such as revenge porn.
However, one aspect of the revenge porn debate has been, up to this point, overlooked or minimized—the confidential relationships in which intimate images are shared. The collection of personal information is not devoid of context. Personal information is often exchanged in the course of relationships. Those relationships engender responsibilities when serious harm results from their breach. Businesses cannot exploit nude images shared in confidence without running roughshod over confidential relationships. This is true whether entities sell access to private electronic communications—in the case of cyber stalking apps—or either violate a confidential relationship or contribute to a breach of confidentiality to obtain nude images for revenge porn sites.
There is a budding movement, underscored by this recent FTC complaint, recognizing that information shared in confidential relationships deserves protection. California’s Attorney General Kamala Harris is prosecuting revenge porn businesses exploiting confidential communications for financial ends. (Yesterday, the jury convicted revenge porn operator Kevin Bollaert on several charges of extortion and identity theft). Businesses are now on notice that it is illegal to exploit information shared in confidence and with an expectation of privacy. Stalking app providers and revenge-porn site operators should heed the warning: Repurposing confidential relationships, and the information shared in them, for commercial gain could prompt action by consumer protection agencies.
Although the FTC’s complaint against Brittain was the agency’s first to involve revenge porn, the reasoning behind it has precedence. Deception is a long-standing cause of action in consumer protection law. Prohibited tactics include contacting financial institutions under an account holder’s name to obtain information and requesting personal information from a consumer for so-called “verification” purposes in the guise of the consumer’s bank. Brittain allegedly acted the same way when he impersonated a woman and promised confidentiality to obtain other women’s nude photos to post on his site.
The second theory of wrongdoing asserted against Brittain has roots in other prior decisions: unfairly inducing individuals to betray another’s trust. Brittain purportedly did just that: he allegedly encouraged and solicited individuals to submit others’ nude photos, names, dates of birth (or age), towns and state, Facebook profiles, and phone numbers.
An emphasis on confidentiality allows individuals to trust one another with personal information. Confidentiality is crucial not only to the business of doctors, lawyers, therapists, bankers and other professionals, but also to facilitate intimacy and trust necessary to form strong social bonds. It allows people to share problems and desires with others. This is why the law has long prohibited breaches of confidence as well as the inducement to breach a confidence. Such protections do not transgress a commitment to free speech because what is penalized is the breach of an implicit or explicit agreement, not the publication of information. Theories of inducement similarly focus on acts, not speech. In other words, the publication of photos isn’t restricted—but inducing others to breach a trust that leads to publication is.
Revenge porn operators sow the seeds of distrust; they solicit the breach of confidentiality to harmful ends—offline stalking, lost jobs, ruined reputations, and humiliation. Similarly, stalking app providers enable private spies to secretly watch everything someone does with his or her phone in real-time. They destroy the legally protected privacy and confidentiality of cell phone communications. Stalking apps traffic in illegal behavior: the betrayal of the confidentiality of our electronic communications.
The FTC and state attorneys general are taking bold steps to protect our ability to confide in others. Focusing on the integrity of relationships is a positive direction for privacy law and norms. We believe it will prove helpful to newsgathering, too—the media wants their sources to feel safe in their assurances of confidentiality and these decisions demonstrate that their promises mean something. Sometimes it is easy to accept the illusion that the rules for our online and offline lives are different. Preserving confidentiality in either realm is a worthy goal. It is time that its promise was realized.
This article was originally published at http://www.theatlantic.com/technology/archive/2015/02/the-decision-that-could-finally-kill-the-revenge-porn-business/385113/
