THE BLOG

We Need a Serious, Federal Digital Privacy Law

09/02/2014 09:58 am ET | Updated Nov 02, 2014
  • Larry Womack Writer, layabout and all-around nogoodnik; web publisher; former Associate News Editor, The Huffington Post
Doug Peters/Doug Peters

If anything good is to come from this weekend's celebrity phone hack, let's hope it's federal action that finally takes seriously the problem of non-consensual online sexual exploitation -- along with all other forms of digital privacy invasion. For years now, our laws and culture have been inexcusably behind technology, particularly when it comes to sexuality.

The person behind this particular hack will be found and prosecuted, of course. Of that I have no doubt. But unless the perpetrator happens to live in one of the states with effective revenge porn laws, it will be for accessing data without permission, not for sexually exploiting human beings without their consent. Their prosecution will most likely be the byproduct of an absurdly out-of-date, 30-year-old law meant to protect the financial interests of big business. In fact, there's a pretty good chance that just by visiting this page, you have unwittingly violated the same law that this heinous person will be charged with breaking. That, my friends, is a problem.

It is almost always legal to sexually exploit people online without their permission, even though we've known it is a problem for some time now. Celebrity "leaks" are commonplace. In 2010, a California resident started a revenge porn website that specialized in posting nude pictures of women alongside their personal information and social media links. For that, he never went to prison. "I'm sorry that your daughter was cyber-raped," he told a distraught mother on CNN, "But, I mean, now she's educated on technology."

She was asking for it. How novel!

Nobody blames the victim when someone steals their credit card number. Nobody ever says, "Well, if you really didn't want your private information exploited, you shouldn't have owned a credit card." Yet, whenever someone's private photos or videos are distributed without their consent, the onus is suddenly on them. You'll probably even see it in the comments below. (Very few terrible people read more than a headline before commenting.)

I suppose the idea is that, while most everyone has a credit or debit card, relatively few have nude or sexually explicit images of themselves. In addition to everything else that's wrong with that attitude, the assumption is ridiculous. A recent survey found that 54 percent of college students admit to having sexted before they even turned 18--and before Snapchat came along. Notice the word, "admit." When a security firm cracked into 20 real life, factory reset smartphones, they were able to recover over 750 photos of nude women and 250 photos of "what appears to be the previous owner's manhood." Photos of the owners' kids outnumbered nudes by just 50 percent. And those were Android phones. Apple users are twice as likely to sext. Face it, America: cyberspace is littered with your dick pics. You have no room to judge.

The California man I mentioned above was finally arrested this year, for paying someone to obtain photos through hacking. That's something, at least, but it's hardly justice for the victims.

These laws, quite simply, are not suited to handle most of these situations. Read the text of the Computer Fraud and Abuse Act. Even national security seems like an afterthought to protecting banks. Personal privacy was barely even on the radar.

In the three decades since that was drafted, the federal government has shown little interest in protecting digital privacy. It generally doesn't need or seek a warrant to read emails older than 180 days. It doesn't notify people who are being monitored. It has even argued in court that cell phone users waive their right to not be tracked by using GPS-based services.

If this person had not obtained the images by hacking Apple, their distribution of sexually explicit images of people without their consent would be legal in most of the U.S. Three years after that revenge porn site went up, California responded with a fairly toothless law which, until this week, only covered images created by the person posting them. One would think that legislators, of all people, would know how sexting works.

And while we allow these adult predators to go unpunished, smartphones have turned existing child pornography laws against the kids they were designed to protect. In New Jersey last month, a 15-year-old girl and 14-year-old boy were both charged with distribution and possession of selfie child pornography. (The video that the girl was charged with creating allegedly shows her -- gasp! -- undressing. This alone is enough to make one question the definition of pornography that these kids are being held to.) Thirty San Diego-area teens were charged last year with creating, possessing and distributing child pornography, though reports are unclear as to whether this includes the kids in the pictures, the ones who shared them without permission or (more likely) some combination of both. A quick Google search will easily turn up dozens of other cases.

The most infamous comes from Virginia, where a 17-year-old boy was recently accused of creating and possessing child pornography after he replied to photos of his 15-year-old girlfriend with a video of himself. Prosecutors and police photographed his genitalia to use as evidence -- then, according to his attorney, sought a warrant to induce and photograph his erection. You know, to protect teenagers from sexual trauma and any unforeseen negative consequences of poor decisions.

Even in cases when children are legitimately the perpetrators, too often only the victim of a sext crime suffers. In Georgia last month, a middle school teacher was fired after her students stole nude photos from her phone and "snapped copies of the images with their phones, texted them to their friends and classmates and posted them on social media sites." If the teens involved are being punished, it doesn't seem to be by the criminal justice system.

Got that kids? Take nude pictures of yourself, go to jail. Steal and distribute nude photographs of your teacher, have a laugh!

I'm not saying, as some will no doubt assume, that teenagers should be allowed to send selfie porn with impunity. But there are a thousand more reasonable solutions than trying them as sex offenders for doing it. Like, say, requiring mobile carries to suspend the numbers belonging to teens caught sending them. I'm sure there are better solutions out there; that's just off the top of my head.

It would be naïve to think that any of this will be addressed on a national level any time soon. This congress has been less productive than any other in modern history and the current administration seems more interested in exploiting weak privacy protections than bolstering them. But we can hope that a Senator or two will take up the cause and introduce a bill that can be passed whenever America comes to its senses.

Little consolation to the people who've already been victimized, but at least it would be something.

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