The Fight Against Digital Abuse: The View from the US by Mary Anne Franks

Posted on December 15, 2015 at 12:25 PM


This piece is based on a presentation Mary Anne Franks was set to deliver at our Digital Abuse of Women conference on 25th November 2015.  Unfortunately due to technical difficulties this didn't happen on the day.  However, we are pleased that Mary Anne has written this article to share her expertise and learning on the issue of online abuse of women.

Throughout history, men’s abuse of women has been variously treated as natural, trivial, or deserved. Legal and social norms challenging the acceptance of domestic violence, sexual assault, stalking, and sexual harassment have been slow to develop. Technological advancement, despite its potential for liberation, all too often serves as a force multiplier for abuse, in addition to making new and insidious forms of abuse possible. The Internet lowers the cost of engaging in abuse (anonymity makes abuse more difficult to trace and to punish) while increasing the impact of abuse (the influence of social media reaches into every aspect of daily life). 

Victims of stalking and domestic violence must now confront rapidly changing and increasingly sophisticated surveillance technologies. Surreptitious and ubiquitous recording devices have also helped create a cottage industry of sexual humiliation, from creepshots to upskirt photos to sexual assaults immortalized on video. The publication of private, intimate images (also called “revenge porn”) destroys women’s careers, educational opportunities, and relationships.Women are routinely targeted with sexualized and violent threats merely for expressing opinions or having a public profile.  The sexual harassment of women in schools and workplaces is now crowd-sourced on social media. Wide variations in the technological literacy of both victims and law enforcement officials exacerbate the problem.

In response to these abuses, women and girls leave jobs, change schools, retreat from public discourse, refrain from expressing their opinions, and withdraw from social media. That is, technology-facilitated abuse drives women and girls out of public spaces, both online and offline, and removes their voices and their contributions from public discourse. And yet these forms of harassment and abuse are frequently characterized as “speech” or “expression,” whereas efforts to combat them are characterized as “censorship.” In the United States, those who resist legal and technological reform to address the online and offline abuse of women claim that such regulation chills freedom of expression. Critics of online regulation attempt to frame the debate as one between a principled defense of free speech and an emotional plea for “safety.” But the actual debate is not free speech versus safety, but free speech versus free speech. By ignoring the chilling of women’s speech and expression, these critics are in effect asserting that the loss of women’s free speech is a necessary and justified cost of ensuring the free speech of men. This highly selective and elitist interpretation of the First Amendment is a grotesque distortion of the right to free speech.

The fight against “revenge porn” can serve as an instructive example. The term “revenge porn” is misleading, as perpetrators are not always motivated by vengeance. Some act out of a desire for profit, notoriety, or entertainment, or for no particular reason at all. A more accurate term would be “nonconsensual pornography,” defined as the nonconsensual disclosure of private, sexually explicit images for no legitimate purpose. The term encompasses material obtained by hidden cameras, consensually exchanged images within a confidential relationship, stolen photos, and recordings of sexual assaults. Nonconsensual pornography often plays a role in intimate partner violence, with abusers using the threat of disclosure to keep their partners from leaving or reporting their abuse to law enforcement. Rapists are increasingly recording their attacks not only to further humiliate their victims but also to discourage victims from reporting sexual assaults.

Nonconsensual pornography can cause immediate, devastating, and in many cases irreversible harm. A vengeful ex-partner, opportunistic hacker, or rapist can upload an explicit image of a victim to a website where thousands of people can view it and hundreds of other websites can share it. In a matter of days, that image can dominate the first several pages of search engine results for the victim’s name, as well as being emailed or otherwise exhibited to the victim’s family, employers, co-workers, and peers. Victims are frequently threatened with sexual assault, stalked, harassed, fired from jobs, and forced to change schools. Some victims have committed suicide. While nonconsensual pornography can affect both male and female individuals, available evidence to date indicates that the majority of victims are women and girls and that women and girls tend to face more serious consequences as a result of their victimization.

Dedicated “revenge porn” sites and other forums openly solicit private intimate images and expose them to millions of viewers (often for profit), while allowing the posters themselves to hide in the shadows. As many as 3000 websites feature “revenge porn,” and intimate material is also widely distributed without consent through social media, blogs, emails, and texts.

In 2009, the Philippines became the first country to criminalize nonconsensual pornography, with a penalty of up to 7 years’ imprisonment.  The Australian state of Victoria outlawed nonconsensual pornography in 2013. In 2014, Israel became the first country to classify nonconsensual pornography as sexual assault, punishable by up to 5 years imprisonment; Canada criminalized the conduct the same year. England and Wales criminalized the conduct in February 2015.  Brazil and Japan are currently considering legislation on the issue. In 2014, a German court ruled that an ex-partner must delete intimate images of his former partner upon request. 

In the US, only three U.S. states had criminal laws directly applicable to nonconsensual pornography before 2013. That was the year I began working with the Cyber Civil Rights Initiative, founded by Dr. Holly Jacobs, a victim of nonconsensual pornography. As the Legislative and Tech Policy Director of CCRI, I drafted model state and federal criminal statutes for the US as well as advising legislators in other countries seeking to address the issue. As December 2015, 26 states and Washington, DC have laws prohibiting the practice. The federal Intimate Privacy Protection Act, based on my model statute, is due to be introduced in the US Congress soon. I have also worked extensively with tech industry leaders to develop policies against nonconsensual pornography. In 2015, major tech companies including Reddit, Twitter, Facebook, and Google announced policies prohibiting nonconsensual pornography and providing for the removal of such material.

The progress in the US with regard to this issue has been achieved over the vehement and continuing objections of groups such as the American Civil Liberties Union (ACLU), one of the country’s most influential and well-funded civil liberties organizations. Despite the fact that the ACLU claims to fight for civil liberties such as privacy and freedom of expression, it has characterized the deep costs to women’s privacy and expression imposed by nonconsensual pornography as constitutionally protected “sharing” of pictures. The ACLU has testified against sexual privacy legislation in several states and even sued one state (Arizona) over its law - with the result the parties eventually agreed not to enforce the law, abruptly dashing the hopes of victims who thought they finally had a chance to seek justice. Even as the ACLU fights to protect the general public’s right to be free of unauthorized disclosures of medical records and geolocation data – disclosures that it does not attempt to characterize as “free speech” - the ACLU refuses to acknowledge the right to be free of unauthorized disclosures of far more private information. It is almost as though the ACLU considers the harm caused by nonconsensual pornography to be natural, or perhaps trivial, or perhaps deserved. Calling out the hypocrisy and double standards of those who claim to be defenders of civil liberties is a vital aspect of the fight against digital abuse.

For presentations and other resources from our Digital Abuse of Women conference please click here.

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