Some More Thoughts on Revenge Porn Websites Legal Issues

February 14, 2013

The website End Revenge Porn links to some laws that I did not discuss in my first blog article on Revenge Porn Websites.

1. Stalking and Harassing

The actions of the Revenge Porn Websites constitute stalking which is a federal crime (see 18 USC § 2261A – Stalking and 18 USC § 2261 – Interstate domestic violence). I do not believe that there is a private cause of action under these statutes. That means that only a federal prosecutor could decide to charge a Revenge Porn Website operator with violating these statutes. Many states have cyberstalking and cyberharassment laws. There is a good summary of state laws at the National Conference of State Legislatures website here.

In Washington there are similar laws against stalking, see RCW 9a.46.110 Stalking and RCW 9.61.260 Cyberstalking and against harassment: see RCW 9A.46.020 Definition — Penalties and Chapter 10.14 RCW Harassment. These statutes define criminal behavior but they do not provide for a private right of action. They do suggest that someone might be able to obtain a protection order. A protection order against the individual who posited the pictures might be an effective tool to stop that person from distributing the pictures elsewhere. But there are difficulties with trying to get a protection order against the people who are behind the Revenge Porn Websites. You have to find them and serve them. You have to have some proof that they are behind the websites. And then if they ignore the protection order, you will have difficulty enforcing the order if they do not live in the same state as the court that issued the protection order. 

2. Federal Record Keeping Requirements

There is a federal law  called the Child Protection and Obscenity Enforcement Act, located at 18 USC § 2257 – Record keeping requirements, that is intended to protect children from being victims of child pornography. It requires everyone who produces image of actual sexually explicit conduct to seek proof that every person whose image is depicted is at least 18 years old, and to keep that proof on file. Revenge Porn Websites do not comply with this statute.

There are several problems with applying this law to Revenge Porn Websites. First this law applies only to actual sexually explicit conduct. Nude and semi-nude pictures do not necessarily depict actual sexually explicit conduct. They can depict actual sexually explicit conduct if they include the “lascivious exhibition of the genitals or pubic area of any person,” which arguably only applies to some of the Revenge Porn Websites images.

Second this law only provides for government action. It does not provide for a private right of action. The federal government has shown no interest in enforcing the statute. There has been only one prosecution under this statute, in 2006 and most of the charges were later dropped. The FBI has conducted a few audits but no charges resulted from its activities.

Third, it is widely reported in various articles that over half of all of websites that display actual sexually explicit conduct are not in compliance with this law. It is unlikely that any one website will be singled out for enforcement.

And fourth, federal courts are still struggling with the issue of whether sections of the law and the regulations that were drafted to enforce it unconstitutional. So far, the court decisions are not consistent.

The Child Protection and Obscenity Enforcement Act does not provide a useful tool in fighting Revenge Porn Websites.

3. Some More Practical Considerations

I have not heard of anyone being able to convince their local police to take any action against the individuals posting the picture or the Revenge Porn Website operators. (Please let me know if you have.) It might help spur the police to action if you bring them copies of the various state statutes that I have mentioned in these articles, including, if appropriate in your state and your case:

extortion and blackmail

child pornography

invasion of privacy and related causes of action

voyeurism

stalking and harassing

You could also consider taking your case directly to the government prosecutors office. In Washington, misdemeanors are usually handled by city attorneys, while felonies are always handled by the county prosecutors office. But every state is different. Again it will help if you can show them your evidence and copies of the statutes you think have been violated.

 

Other Articles on Revenge Porn Websites on My Blog.

Revenge Porn Websites such as yougotposted.com Raise Complex Legal Issues

Fighting Revenge Porn Websites – some useful links

 

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Posted by Law Offices of Gary Marshall

Revenge Porn Websites such as yougotposted.com Raise Complex Legal Issues

January 14, 2013

The Internet brings up such interesting legal issues. Here is one example.

What it is

Disgusting is a good word for it. Revenge Porn Websites such as yougotposted.com allow visitors to post pictures online that are then viewable by everyone. They encourage people to post compromising, usually nude, pictures of ex-boyfriends and -girlfriends, often without their permission or even knowledge. Some of these pictures were taken without their consent. Many of the pictures were taken with their consent or by them, but only for private viewing. The clear intent of yougotposted.com is to embarrass and harass people. Here is what their sister website has to say:

Search results are your reputation.

Misleading, inaccurate or negative links in your search results adversely affect the impression you make when people Google you and can substantially impact you or your business. What Google shows people, whether it’s accurate or not, is your reputation.

Bad search results can be a real problem.

Unfavorable search results can influence how your job, school, neighbors, insurance companies, loan officers, landlords, clients, and even romantic interests view you.

The yougotposted.com website adds the caption in the form of “Jane Doe of Seattle Washington” to every set of pictures. Often these identifiers include other personal information such as what high school and college the person went to, place of employment and a link to their facebook page . As a result, if anyone searches for “Jane Doe Seattle Washington”, the first entry that comes up will be yougotposted.com’s nude pictures. Friends looking for Jane Doe, or worse, potential employers, will be directed to this website.

Unfortunately there are many similar websites, including IsAnyoneUp (now defunct), IsAnybodyDown, Pinkmeth, Texxxan (now defunct?), huntermoore.tv and 1upem. There are also websites with variations on the theme.

How they make money

Like many websites, yougotposted.com makes money from ad revenue. There appears to be an additional source of revenue as well: charging people $199 to have their pictures removed from the yougotposted.com website. yougotposted.com has a complicated procedure for requests to remove pictures and largely ignore those requests, even when their procedures are followed. The web page that tells you how to complain has an ad for another website that for $199 will protect your reputation. (“IF YOU NEED ASSISTANCE MANAGING YOUR REPUTATION ONLINE PLEASECLICK HERE –AD”) It appears that all that website does is get your pictures taken down within minutes of paying their $199 fee. There is evidence that the two website are owned and operated by the same people.

Legal Issue No. 1. Extortion and Blackmail

In my opinion, the most serious legal issue is the appearance of extortion. Extortion is illegal in most if not all states. In Washington it is illegal knowingly to obtain or attempt to obtain by threat property or services of the owner. See RCW 9A.56.110. Is it extortion if yougotposted.com encourages people to post compromising pictures of third parties and then insists that the third parities pay them money to have the pictures taken down (assuming it can be proven that the two websites are in fact linked?) It is not clear, but I will go out on a limb and say that I think so. Extortion and blackmail are closely related topics. I could not find a clear definition of the difference, but a common distinction made is that blackmail is a form of extortion that threatens to reveal embarrassing, disgraceful or damaging information about a person to the public, family, spouse or associates unless money is paid to purchase silence. yougotposted.com’s action also might constitute harassment, See for example Washington RCW 9A.46.

Legal Issue No. 2. Child Pornography

Many of the pictures were taken while the subjects were in high school or earlier when they were minors. It is against federal and state law to possess or display pictures of minors that are intended to sexual stimulate the viewer. From my experience, the website will take down any obvious pictures of minors. For pictures that are not obvious, they require so much information that it is practically impossible to convince them to remove the pictures. See their website contact page, which states

If an entry violates any state or federal law, please submit the following supporting documentation along with your request for removal: if the subject of a post is under the age of 18, a copy or photo of a driver’s license, or valid photo ID along with a copy of a birth certificate; Removal requests that are submitted without the appropriate documentation, or requesting the removal of entries not in violation of any state or federal law will NOT be reviewed or removed.

It is probably true that some people who object to their pictures being posted will claim to be underage when they are not. Can yougotposted.com be held criminally liable because they are encouraging other people to post underage pictures and they make it difficult for the pictures to be removed? The answer is not clear. The magazine and online website Backpage has been running prostitution ads for many years. It is generally accepted that many of the prostitutes that are advertised are underage. Law Enforcement officials have been trying to get Backpage to stop running these ads. They have not succeeded. (See for example Backpage Takes Heat, But Prostitution Ads Are Everywhere.) Is yougotposted.com in a similar position? Backpage cooperates with law enforcement in specific cases. If yougotposted.com is truly cooperative in taking the pictures down when asked, then I do not think they can be held criminally liable. If yougotposted.com does not cooperate in removing the pictures they might be liable.

Legal Issue No. 3. Invasion of Privacy

Most states allow for a private action for invasion of privacy. There is a common law right of privacy in Washington. This right has been described as:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

If the incriminating pictures were taken without the person’s consent in a place where that person had a reasonable expectation of privacy, then posting them online would be invading their privacy. There are not clear lines of what constitutes privacy. What if someone participated in a public event such as a nude bicycle ride and someone took pictures. It is unlikely that posting of those pictures would be an invasion of privacy. What if the person visited a nude beach where no cameras or photography were allowed, and someone took pictures anyway? Not clear. The most relevant case for yougotposted.com is nude pictures that an individual took of themselves and shared with an intimate friend with the understanding that the pictures would remain private. It might depend on the facts and circumstance of each case. I would think that in the past this would be invading someone’s privacy. I hear that sharing of these pictures, often called sexting, is becoming quite common. If this is true, and it is common that the pictures get shared beyond the immediate recipient, an argument can be made that there is no longer an expectation of privacy in the pictures.

There are similar related causes of action such as false light, intrusion on seclusion, public disclosure of private facts, appropriation of name and likeness, and intentional infliction of emotional distress.

Legal Issue No. 4. Copyright Infringement

Some of the pictures are being posted without the copyright owner’s permission. For example, taking pictures taken from a persons facebook page and posting them would constitute copyright infringement. There is a limited safety net from copyright infringement for online publishers. Title II of the federal Digital Millennium Copyright Act (DMCA) limits the copyright infringement liability of certain online service providers. The act protects online service providers who store and post content online at the direction of their users. In order to qualify for the protection, a service provider must establish a system for accepting claims of copyright infringement on its website and establish a procedure to remove materials from its website that infringe upon someone else’s copyright. There is a very specific procedure that must be followed. The procedure must be posted on the website. Provided that yougotposted.com posts the proper procedure and follows it, it can not be held liable for copyright infringement committed by its users. The website has posted the proper notices, and I have no reason to assume that they are not following the procedures.

Some of the other Revenue Port Websites do not follow the proper procedures. They claim to be protected by the DMCA but because they do not comply with its requirements, they are not entitled to its protections.

The DMCA only protects websites from liability for copyright infringement. It does not protect them from liability for other legal causes of action.

Legal Issue No. 5. Voyeurism

Most of the pictures on the website appear to have been taken by or with the subject’s knowledge. But some of them were taken without the subject’s knowledge or permission. These days almost everyone has a high quality camera available at all times in their cell phone. It is easy to take compromising photos of unsuspecting victims. In response to this new technology, and for other obvious reason, some states has passed laws making it illegal to take pictures of people without their permission when they should have a reasonable expectation of privacy, in public or in private, for the purpose of arousing or gratifying the sexual desire of any person. In Washington the law is RCW 9A.44.115. The person taking the picture violates this law.

Does yougotposted.com violate the law by posting the pictures? It is not clear. The Washington statue makes taking of the pictures a crime, but it says nothing about distributing the pictures. Maybe an argument can be made that yougotposted.com is assisting in the criminal activity or encouraging the criminal activity. I am not a criminal attorney, but those arguments seem weak to me. Again, if Backpage is not committing a crime by advertising underage prostitution, how can yougotposted.com be criminally liable for posting voyeuristic pictures?

There are other problems with holding yougotposted.com criminally liable as well. In most cases you can not tell by looking at the pictures if the person being photographed gave permission. What if that person notifies yougotposted.com that the pictures were taken without their permission and asks yougotposted.com to take them down? It would be impossible to distinguish between pictures that were truly taken without permission, and pictures that were taken with permission, but now that they are posted online, the subject has had a change of heart and has changed the facts to try to get the pictures taken down. I think it would be hard to hold yougotposted.com liable for posting the pictures until there has been some formal determination, probably in a court of law, that the pictures were in fact taken without the subject’s permission. The subject should probably focus on getting the person who posted the pictures to admit to yougotposted.com that they were taken without permission. If yougotposted.com refuses to take them down after being notified by the poster, then there is a good argument that yougotposted.com is liable at least in civil court, probably for invasion of privacy (see above).

Legal Issue No. 6. Intent

The courts have struggled for some time now as to how to deal with companies that develop technology or websites that people can use to violate the law. They have held these companies not liable unless there is clear intent to encourage the unlawful activity. Can yougotposted.com be held liable in civil or criminal court simply because it is encouraging and facilitating damaging and possibly criminal behavior in others?

The first major case was the Sony Betamax case, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). Sony had introduced the first successful consumer video taping machine. People were using the machine to tape programs and movies from television broadcasts. This was being done without the permission of the owners of the copyright in the materials. The court held that copying television programs and movies in order to watch them at a different time was not copyright infringement. The court went on to say that even though the Betamax machine could be used to make illegal copies of programs and movies, as long as the machine was “capable of commercially significant non-infringing uses” Sony could not be held liable for copyright infringement.

Another major case was A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001). Napster was a website that allowed users to store music files online and share these files with every other user of the Napster system. Most of the files were protected by copyright and posted without the copyright owner’s permission. The court held that Napster could not be held liable simply for posting the files, since the service could be used for non-infringing purposes. But the court held Napster liable because it continued to post the files even after receiving complaints from copyright owners.

The last court decision I will discuss is the Grokster case, MGM Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 (2005). Grokster tried to replicate the Napster music sharing service with one significant change; the files remained on the individual users’ computers. Grokster merely facilitated the sharing of music files from one personal computer to another. The files were never stored on a Grokster-owned computer. Grokster blatantly advertised and promoted its website as a means to share copyright protected music files. The court found that the Sony test did not apply and a company can be held liable for copyright infringement when the company actively promotes the illegal activity.

Finally there is a case in the courts right now that challenges the limits of Grokster and Napster. Recently, consortium of U.S. federal agencies, working with police forces from around the world, shut down a series of file sharing/file storage websites best known as MegaUpload. They also arrested the senior executives of the companies behind the websites — including the flamboyant apparent leader of the group Kim Dotcom — and seized various assets of the company and the individuals. There is no doubt that MegaUpload was used for the illegal sharing of copyright protected files of all types, including software, movies, and music. MegaUpload encouraged people to post files on its system and encouraged copyright by paying users who posted files based on the traffic their files generated on the system. The more traffic a person generated, the more that person was paid. MegaUplaod did have a system in place to take down files when the copyright owner notified them of the infringement.

MegaUpload is a huge website. Based on the sheer volume of use, only a small percentage of infringing files were ever taken down. MegaUpload itself claimed that it had 50 million daily visitors and traffic on its websites accounted for 4% of all Internet traffic. The website could not possibly maintain 100% compliance with take down requests. They also made no effort to prevent the same files from being uploaded again. Does that make the owners of the website civilly liable for copyright infringement? Does it make them criminals? Those are tough question and ones where I do not think there has been any case law yet. See my blog post Why the MegaUpload Arrests Bother Me) for further discussion on this particular case.

yougotposted.com is clearly actively promoting its users to post pictures that in some cases are criminal in nature, and in many cases violate individuals’ civil rights. Can yougotposted.com be held liable under the Grokster theory? Only time will tell. I hope so, but it will be a difficult argument to win.

The strongest case against these websites is for extortion, because they are actively participating in that activity and directly benefiting from it rather than passively allowing it to take place.

Legal Issue No. 7. Violation of the Consumer Protection Act

Many states have broadly-worded consumer protection laws. In Washington there is the Consumer Protection Act, RCW 19.86 which prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Violators can be held liable for treble damages up to $25,000, and most importantly may have to pay the complaining party’s attorneys fees. It is likely that yougotposted.com’s activities are in violation of Washington’s Consumer Protection Act.

Legal Issue No. 8. Practical Considerations

There are practical considerations as well. There is considerable talk on the Internet about who is behind these types of websites. Specific names are mentioned. But suspecting that someone is responsible for a particular website and proving it are very different. If you can not prove a particular person is responsible for a particular website, you will not be able to get a judgment against them even if you can show that the website violated your legal rights.

It may also be difficult to locate these individuals. In order to start a lawsuit against someone, you must have that person personally served with a copy of the lawsuit. If you can not locate them, you can not serve them and you can not proceed with your lawsuit.

Even if a judgment is obtained, you still have to collect. It is unlikely that these individuals have much money. Their business model may result in several payments of $200 or so per day, but that is not a lot of money after paying for the cost of maintaining and defending the website. Also, in my experience the type of people who would run websites like these do not do well at business. They may be able to obtain small amounts of money with minimal work, but they are usually not capable of holding on to that money or converting it to large scale success.

It is very easy to identify the companies that are hosting the websites. These companies usually have nothing to do with the content of the websites they host. They are just computer operators. It may be possible to get them to remove the offending websites simply by asking. It would certainly be easy to serve them with a cease and desist order if you were to obtain one from the court. But there are many website hosting companies around the world. It is possible that shutting down a particular host will just force these people to place their websites with hosts in some far off country with lax law enforcement where it will be hard to enforce any court order.

It may be that these individuals are not sophisticated enough to avoid the law in which case one hopes that they will eventually be forced out of business.

Legal Issue No. 9. The People Who Post Can Be Liable Too

The people who post the pictures on these websites face similar liability. They are not responsible for extortion or violation of consumer protection acts. Depending on the nature of the pictures, they can be liable for invasion of privacy and voyeurism. They are criminally liable for child pornography if the pictures contain images of children. They are liable for copyright infringement of any pictures they post without permission that are protected by copyright. While the operators of websites may have to be given an opportunity to take down the pictures before they can be liable for copyright infringement, no such protection is available to the people who posted the pictures in the first place. As soon as they copy the pictures onto the website they have committed copyright infringement.

What do you think?

Have you had any experiences with yougotposted.com or any similar website that you care to share? Any thoughts on the law?

Update

yougotposted.com is now ugotposted.com. 

Other Articles on Revenge Porn Websites on My Blog.

Fighting Revenge Porn Websites – some useful links

Some More Thoughts on Revenge Porn Websites Legal Issues

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Posted by Law Offices of Gary Marshall

Washington Marijuana Startups present interesting legal issues

December 11, 2012

Washington has just passed new legislation that makes possession of small amounts of marijuana legal within the state. The legislation also authorizes the state to develop a system to license businesses to grow and sell marijuana. Many of the new marijuana businesses may be mom and pop operations. But the market potential is huge, estimates vary up to $6 billion per year in Washington alone. That is attracting venture capital and high tech entrepreneurs who intend to apply high tech startup business methods to marijuana sales. See Investors see profit potential in new pot law and Former Microsoft Exec plans high-end marijuana business.

Most of the legal issues for marijuana businesses will not be new. Regulations for marijuana sales will probably be similar to regulation of alcohol sales. Most marijuana business start up legal issues will be similar to the already existing high tech startup legal issues. There will be issues of management, ownership, control and funding. Intellectual property protection will be important, especially branding, which is a form of trademark law.

But there will be new challenges as well. For example, marijuana possession and sale remain illegal under federal law. Contracts to perform illegal acts are generally not enforceable. Would an agreement to run a marijuana business be unenforceable because it is against federal law, even though it is legal under state law? It may turn out that such an agreement is enforceable in Washington state courts, which apply state law, but not in federal courts, which may be included to apply federal law. To be safe, it is probably best to include a clause in any marijuana business contract that states that the contract is governed by Washington state law and that any lawsuit brought to enforce the contract must be brought in a Washington state court. I am sure that other unusual legal issues will arise as well. I will try to write about them as they arise. 

Please join the discussion. What do you think? Given the risks involved, would you invest in a marijuana startup? Would you work for one in return for equity? Does it make sense to apply the high tech startup business model to marijuana sales?

Update January 28, 2013: See also Pot entrepreneurs seek funding from investors.

 

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Posted by Law Offices of Gary Marshall

Death by Internet? (Tyler Clementi’s suicide)

March 12, 2012

In the news this week, Dharun Ravi is on trial for several crimes in connection with college freshman Tyler Clementi’s suicide. The news reports originally claimed that Ravi secretly taped Clementi making out with another young man and broadcast the video live on the Internet and that this act drove Clementi to commit suicide. Should there be a specific law to cover harassment over the Internet that results in suicide?

Because Ravi used the Internet to broadcast his harassment and because the victim of his harassment later committed suicide, it seems like what he did was worse than other thoughtless school pranks.

Should we make a distinction between youthful pranks that harass but do not involve the Internet and those that do? Both are bad, and both should be punished. But should the fact that the prank is broadcast on the Internet mean it should be treated more severely than other pranks? This case raises these issues. Ravi is not actually being charged with causing Clementi’s suicide, but I do not believe that he would have been charged at all if Clementi had not committed suicide.

The Clementi case is actually more complex than it at first seems. Let me make this clear. What Clementi’s roommate Ravi did was wrong. But how wrong was it from a legal point of view?

There is very little law concerning Internet harassment and its consequences. So the police and prosecutors in this case had to turn to existing law and apply it to the Internet. Ravi is being charged with two counts of criminal invasion of privacy, one for making the sex tape, and the other for distributing it. The prosecution has added a charge of bias intimidation as a hate crime, along with hindering apprehension and witness tampering.

Is Ravi guilty of any of that? Even Clementi said on his on-line posts that the video of him did not really show anything. Is it a crime to attempt to show sexual conduct, or does one have to actually succeed to be guilty?

The invasion of privacy claim seems weak. Did Ravi invade Clementi’s privacy by showing him in a gay encounter on the Internet? Maybe, maybe not. Apparently the video did not show any nudity or other private matter other than that Clementi was gay. Clementi did not hide his sexual orientation from his roommate. He had openly talked about being gay on JustUsBoys.com. Somehow his roommate had seen his posts there and on August 22, a month before the video incident, tweeted “Found out my roommate is gay,” and linked to the JustUsBoys.com thread.

On the nights in question, Clementi told Ravi that he wanted to use the room that night to make out with another man. (From his entries on JustUsBoys.com: “so the other night I had a guy over. I had talked to my roommate that afternoon and he had said it w/ be fine with him.”) How much privacy can one expect in a dorm room that he shares with another person? His roommate did in fact walk in on him during one such encounter. That was to be expected.

Is there a difference between being open about your sexual orientation to your roommate and having your roommate announce it to the entire world on the Internet? Is a secret still a secret if it gets out to one person, knowing he might tell other people in your dorm, but no longer a secret when that person then turns around and uses the power of the Internet to tell a million other people on the Internet? I don’t think that Clementi’s sexual orientation can be considered a private matter. Therefore there can not be any invasion of his privacy by the mere announcement to the world that he is gay.

The bias intimidation claim is a little stronger. Ravi apparently invited his friends to view his gay roommate making out. But how intimidating could it have been to Clementi for Ravi to openly accuse him of being gay when Clementi publicly acknowledged that he was gay?

I have come to the conclusion that the Internet does not introduce new concepts to the law. But it does magnify existing legal issues. There is a concept that lawyers call the slippery slope. An act which may seem reasonable when done to a small degree, becomes less and less reasonable when done to a larger degree, until at the other extreme, it seems totally unreasonable. When an activity takes place on the Internet, you can go very quickly from a slippery slope to jumping off a cliff. This is a theme that I expect to be talking about a lot on this Blog.

In this case, if Ravi had just told some people in the dorm that Clementi was gay, we probably would not be talking about the incident. He would not even get in trouble. If he had handed out leaflets on school grounds announcing that his roommate is gay, he might have gotten in trouble with his school, but it would probably not be a crime. The fact that he broadcast the information on the Internet where it was viewable by millions seems to make it worse. But is it that different?

Of course, if he had succeeded in video taping anything revealing and had broadcast that on the Internet, it might have been different. I suspect that it has always been quite common for college kids to photograph each other in compromising situations. In the old days when a single copy of a photo, often a low resolution blurry image, was handed around a school or a dorm, this seemed like no big deal to most people. The fact that that photo or video now gets recorded in high definition with automatic focusing and then is sent to hundreds or thousands or millions of people by telephone texting or on the Internet makes the consequences much more serious. The actual act is still the same – it is still just a stupid thoughtless school prank. Such acts should be punished, not condoned. But should the same act be punished more severely because it is seen by more people? Maybe or maybe not.

I suspect that prosecutors will have a hard time proving invasion of privacy. They are not even trying to prove that Ravi contributed to Clementi’s suicide. Should they try? Since what Ravi did was reprehensible, it is likely the jury will find him guilty of some of the charges. But should they?

I have not heard of any school action against Ravi. Why was there no school punishment? If there had been school punishment, should that have been enough? Would it have been enough if Clementi had not committed suicide? Would it have been enough if Ravi had not tried to broadcast his video on the Internet? Should these factors be taken into account?

This is the fourth case in recent years that I am aware of where a young person committed suicide after being harassed on the Internet.

In 2007, 13-year old Megan Meier thought she had made a new friend when a cute teenage boy named Josh contacted her on MySpace and began exchanging messages with her. When he abruptly ended their on-line friendship a month later she committed suicide. It turns out she had been corresponding with several members of the same family that included a so-called friend of hers, and her mother, all pretending to be Josh. The mother was charged with violating various federal laws related to computer fraud and abuse, and was convicted. Her convictions were reversed on appeal. http://en.wikipedia.org/wiki/Suicide_of_Megan_Meier

In May 2008, high school student Jessica Logan broke up with her boyfriend. She had previously sent him nude photos by telephone. After the break-up he sent her nude photos to hundreds of students at their school. Logan faced harassment, abuse, humiliation, and stereotyping as a bad girl. Two months later in July 2008, Logan committed suicide. No one was charged.

In 2009, the story repeated itself. In June Hope Whitsell, just 13 years old, sent a semi-nude photo of herself to a boy she liked. He or possibly a friend of his forwarded it to his friends and the photo ended up being widely distributed at her middle school and the local high school. She was also harassed by school mates and committed suicide in October. Again no one was charged.

What distinguishes these cases from other teenage suicides is that the harassment took place over the Internet. Does that require an entirely new legal paradigm? I think we are fascinated by these case because the Internet is still relatively new and we are amazed by the power of the Internet.

Unfortunately teenage suicide is not uncommon. The Centers for Disease control report that approximately 4,400 teenagers commit suicide each year. Suicide is the third leading cause of death, behind accidents and homicide, of people aged 15 to 24, and the fourth leading cause of death for children between the ages of 10 and 14. http://www.cdc.gov/violenceprevention/pub/youth_suicide.html

I am sure that every one of those suicides has a story to tell. But we do not hear most of them.

Do we really need a new set of laws to deal with four cases of teenage suicide over a four year period? What are we doing in the meantime to prevent the other 3,399 teenage suicides each year?

Will we stop being shocked by youthful pranks that go viral on the Internet once the Internet has been around for a while, or will we hold this generation’s youth to a higher standard than their parents, because they have more technological power to publicize their pranks? Most stupid school pranks are best handled as a minor criminal matter in very serious cases, and subject to school discipline in less serious cases. Should the fact that Ravi used the Internet mean that he should be charged with multiple felonies and up to ten years in jail? Should we take into account that Clementi committed suicide, when Ravi is not actually charged with that?

I have some thoughts, but will save them for a later post.

I wish people would start discussing these issues on my blog. What do you think?

 

Update March 9, 2012: The prosecution has rested its case. Commentators said they put on a stronger case against Ravi than was expected. The Defense starts today.

Update March 12, 2012. The defense has rested. It does not sound to me like they put on a good defense. Every case has good facts and bad facts. You need to embrace the bad facts and convince the fact finder that you deserve to win despite the bad facts. Ravi’s actions were reprehensible. His attorney should have admitted that and then tried to explain why they did not rise to the level of a serious crime. Instead the attorney tried to convince the jury that Ravi did not do anything wrong – he was merely trying to protect his expensive equipment that was in the dorm room. No one is gong to buy that.

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Why the MegaUpload Arrests Bother Me

January 31, 2012

Last week a consortium of U.S. federal agencies, working with police forces from around the world, shut down a series of file sharing/file storage sites best known as MegaUpload. They also arrested the senior executives of the companies behind the sites — including the flamboyant apparent leader of the group Kim Dotcom — and seized various assets of the company and the individuals. MegaUpload and its senior executives are not particularly sympathetic characters. But the arrests bothered me. I did not initially know why.

Many sites have been shut down for offering illegal goods, whether it be counterfeit goods meant to look like the original (fake Rolex watches for example), or illegal copies of software, But this one felt different. So I decided to write a blog piece about it. While writing this piece, I figured it out.

There are people who use technology to steal. Whether it is bank account balances, credit card numbers, knock-off copies of famous brand products, or digital content, it is clearly stealing. The technology is just the means to an end. I have no problem with arresting these types of people.

Then there are people who try to push the limits of the law using current technology. Sometimes these efforts lead to new uses of the Internet. For example, in the early days of the Internet I remember that the very first commercial Internet spam came from a law firm. The law firm got blasted for what was at that time seen as an outrageous attempt to commercialize the Internet. Ah the good old days when there was only one spammer. Yet commercial email advertising has become a major part of the Internet experience.

I do not see people who push the limits as criminals. Some of them may be bad people, and they often get sued, and they often lose, and I am fine with that. But I would leave it to the civil courts to define what appropriate technology behavior is. I would not make it a criminal issue.

The concepts of file sharing and on-line file storage on the Internet are still fairly new, and the law around what is allowed and what is not is still in flux. Several early cases, particularly A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001) and MGM Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 (2005), established that if the file sharing company encouraged people to share copyright protected files through its site, then the site itself was liable for contributing to the infringement.

The current area of uncertainty involves the 1998 Digital Millennium Copyright Act (DMCA). Under the DMCA, service providers are protected from copyright infringement liability if they follow certain procedures. When they are notified by copyright owners of infringing material on their site (called a take down notice), they must promptly take down the copyright infringing material.

So far, courts have held that service providers do not lose the protection of the DMCA simply because they are aware that their site is being used to store copyright infringing material. See Viacom International, Inc. v. YouTube, Inc., No. 07 Civ. 2103 (currently on appeal although likely to settle) where the court found:

“[I]f a service provider knows (from notice from the owner, or a “red flag”) of specific instances of infringement, the provider must promptly remove the infringing material. If not, the burden is on the owner to identify the infringement. General knowledge that infringement is “ubiquitous” does not impose a duty on the service provider to monitor or search its service for infringements.”

The heart of the government’s case against MegaUpload seems to be that the owners of MegaUpload were aware that its site was being used for the exchange of copyright infringing material. Case law suggests that this knowledge is not sufficient for civil liability. It is hard to imagine that it would then be sufficient for criminal liability.

The government then seems to admit that MegaUpload removed offending files when it received a DMCA takedown notice. But the government also seems to be saying that MegaUpload was slow to remove files and did not do a very good job. Again, this does not appear to constitute criminal liability.

I have already discussed the problem that the sheer size of today’s major file sharing and file storage sites makes it impossible for companies to be in 100% compliance with the DMCA. See Copyright Enforcement on the Internet – Where should we draw the line? Even Apple does not maintain 100% compliance.

MegaUpload made some effort to remove infringing materials after it received take down notices. MegaUpload is a huge site. MegaUpload itself claimed that it had 50 million daily visitors and traffic on its sites accounted for 4% of all Internet traffic. The site could not possibly maintain 100% compliance with the DMCA. Does that make the owners of the site civilly liable for copyright infringement? Does it make them criminals? Those are tough question and ones where I do not think there has been any case law yet.

It is important for technology innovation that we let people push and test the limits. One of the founders of Napster, Sean Parker, took what he learned from Napster and became one of the key people in developing Facebook. If Parker had been branded a criminal instead, I would not say that social media would not exist, but social media might have developed much more slowly than it has.

By attacking MegaUpload before the limits of the DMCA have been established, theU.S.government is likely to scare off companies and new products and services that would otherwise provide legitimate technological innovation in on-line data storage (cloud storage) and file transfer services. TheU.S.government should have waited until case law was settled on this issue before using its full force to arrest and detain the MegaUpload individuals and seize their assets all over the world.

The criminal indictment quotes from many emails that suggest that the individuals who were arrested did participate in uploading some individual copyright infringing files to their own sites. Although these charges are minor, they may be the strongest part of the government’s case.

Even though the government’s case appears weak overall (and I say appears because we really do not know all the facts yet), I predict that the U.S. government will attempt to save face by putting so much legal pressure on MegaUpload that the executives will be forced to plead guilty to some minor charges and to forfeit their sites, seized property and money.

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Copyright Enforcement on the Internet – Where should we draw the line?

October 26, 2011

In this week’s news a woman is suing Apple for copyright infringement because two of the iPhone apps it sells are using pictures that belong to her. She complained to Apple but they did not remove the pictures. Details here.

.When should we hold a company liable for contributing to copyright infringement by others on its web site? I am not talking about direct infringement, when the company itself uses someone’s copyright protected work without their permission. That one is easy. They should be liable. But what if somewhere on the company’s web site someone else has posted material that violates someone’s copyright? In the early days of the Internet we still held the company liable, although we usually gave them a chance to fix the problem. They were not liable unless they were notified of the infringement and we gave them an opportunity to correct it, and they still failed to fix the problem. (See in particular the Digital Millennium Copyright Act (DMCA)).

These days web sites are so large, and the databases that drive the web sites are even larger. We have a company like Google that is trying to put every book ever written on its web site. Now we are starting to see cloud storage of music, and important files, and perhaps eventually cloud storage of everything. Has the Internet become too big to expect individual companies to be able to police their own web sites?

I was talking to an attorney from Facebook recently. I am paraphrasing what he said. If Facebook had to search its own web site for all the instances of a particular item, it would take months, or perhaps even years, even at computer speeds. Their database is that large.

In the case in the news, the woman used an iPhone app to take pictures which she then uploaded and posted on a picture sharing web site with the appropriate copyright notice. The iPhone app she had used copied her pictures, after removing the copyright notice, and posted them on the Apple App store web site to help market its app. She claims to have notified Apple at least six times prior to filing the law suit. I am not privy to the actual details of the case, but I find it hard to believe that Apple would intentionally ignore her complaints. I suspect they just have too much ‘stuff’ out there, and can no longer effectively police it all. According to Wikipedia, as of May 2011 the Apple App store had over 500,000 third-party apps officially available. That number is growing all the time.

So what is the answer? Do we let Apple get away with contributing to copyright infringement? Do we require that companies with large web sites/databases develop new techniques to police their sites? Or do we require companies to keep their web sites/databases small enough that they can effectively police them with today’s technology? I suspect that the answer will come from new technology, not from new laws. These companies will get better at policing their sites, and we as a society will get more tolerant when they do not do so as effectively as some people would like.

I would have advised this woman that once she posts something on the Internet, her ownership and control is effectively gone, no matter how aggressively she tries to police its use. That may not be fair. That may not be legal. But that is the way it is.

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Our Vanishing Right of Privacy

September 14, 2010

An issue came up recently where a man was upset that people in his condominium complex were using the pool and Jacuzzi late at night. He wanted to take pictures of their activities to document their behavior in his complaint to the condo board. Can he do that?

The law recognizes a limited right to prevent other individuals from invading your privacy. There is a legal doctrine that there is no right of privacy for activities that are conducting in “open view.” If this person can see the activity from a window of his condo with an ordinary camera, I do not think there is any reasonable expectation of privacy. What if he can not see them from his window, but he can walk right up to them in a common area open to all condo owners. Is that still an “open view”? Does it matter what they are doing? Is there a difference between a group of friends just partying, and a couple making love? I would not think so.

My favorite case on this subject comes from the Woodstock movie. For those of us old enough to remember, in the movie about the original Woodstock festival there is a scene where a man and a woman are running through a field of tall grass, peeling off all of their clothes, and falling down together presumably to make love. One of the stage cameras had been turned around and the operator used his high powered zoom to capture this scene which actually took place behind and far from the stage in a field where no one else was around.

Well it turns out that a man had gone to the Woodstock festival but his wife could not make it. He came home and raved to her about how wonderful the festival was. When the movie about the festival came out he insisted that they go see it together. There they were sitting in the movie theater watching the movie when up popped the image of him running through the field with some other young woman. The wife divorced him. He sued the movie producers. The court held that he had no expectation of privacy. There may have been some anti-hippie bias in that ruling.

Back to our example with the condo person. What if he had to use special equipment, a high powered zoom lens or some special night vision lens to take his pictures. Would that matter? The answer is not clear.

In a more recent case, actress Jennifer Aniston was sunbathing topless in her own backyard surrounded by a fence. A photographer standing on the public sidewalk found that if he stood  in one particular spot, using a high powered zoom lens, he was able to get a picture of her which he intended to sell to some sleazy magazine. She threatened to sue. I believe he backed down and withdrew the picture. But it would have made for an interesting case.

Nowadays, satellite images are readily available on any personal computer. For example, many aerial details can be seen by using Google Maps. Does that change our reasonable expectation of privacy? An environmental group took a series of aerial photographs of the California coast, including the yard and house belonging to Barbra Streisand. She had chosen to live in a house set far back from the highway to maintain her privacy. She sued for invasion of privacy (and other claims) and lost. That type of photography is now readily available in Google Maps. Does that mean that we no longer have any right to privacy in our backyards?

That is why I love this area of law. There are no clear rules. And with advances in technology, the law is constantly changing. One of the effects is that the amount of our lives that is protected by the right of privacy is constantly shrinking. What do you think?

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Hello world!

September 10, 2010

Welcome to my blog, Marshall2Law. In this blog I will be commenting on issues involving law, business, the Internet, society, and social responsibility.  My primary target audience is socially conscious business entrepreneurs. Entries will range from business and legal tips to brief insights into major social issues. I welcome comments, suggestions and an open discussion. You can also find my blog on facebook at Law Offices of Gary Marshall.

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