Taking Back the Internet: ImposingCivil Liability on Interactive ComputerServices in an Attempt to Provide anAdequate Remedy to Victims ofNonconsensual Pornography

Table of ContentsI. Introduction 2514II. Defining Revenge Porn 2520III. A Revenge Porn Victim's Existing LegalOptions 2525A. Copyright Law 2526B. Tort Law 2529C. Criminal Law 2531D. Enacted and Proposed State Legislation 2534IV. The Challenge of Combating Revenge Porn: § 230 Immunity 2538A. The Communications Decency Act 2538B. Traditional Interpretations of § 230 Immunity 2540C. The Movement Away from Broad Interpretations of § 230 Immunity 2544V. Proposal to Reform § 230 of the Communications Decency Act 2548A. Proposed Amendment to Limit § 230 Immunity 2549B. Possible Responses to Notification 2551C. Effectiveness of the Proposed Amendment 2552VI. Conclusion 2555I. IntroductionAt the age of thirty-three, Hollie Toups received a lifechanging phone call.1 While at work, the Texas teacher's aide answered her phone only to hear the devastating news that halfnaked images from her past could be found online.2 After rushing home to check the website Texxxan.com, Hollie discovered several topless photographs of herself.3 She had taken the photographs nearly ten years earlier for an ex-boyfriend,4 and now they flashed across her computer screen with links attached to her social media accounts and a Google map of her location.5 Both humiliated and afraid, Hollie refused to leave her home for days, and when she finally ventured into town, strange men approached her about the seminude photographs.6 Unwilling to accept this devastating form of public humiliation, Hollie chose to fight Texxxan.com.7 Ultimately, her legal battle would gain national attention and bring light to the legal issues surrounding the nonconsensual distribution of sexually explicit images of an ex-partner,8 now commonly known as "revenge porn."9Hollie's story is not unlike those of countless other revenge porn victims.10 Because she originally captured the images for a romantic interest, Hollie assumed her ex-boyfriend distributed the pictures.11 Though she eventually discovered that a hacker stole the images from her phone,12 Hollie's first assumption illustrates the common principle behind revenge porn. Most images found on revenge porn websites stem from ex-partners, jilted by their former partner and seeking revenge through public humiliation.13 If an ex-partner stores sexually explicit photographs from the relationship, the ex-partner may distribute these to various revenge porn distribution websites.14 Once the 14. See Mary Anne Franks, Combating Non-Consensual Pornography: A Working Paper 3 (Dec. 5, 2013) (unpublished manuscript) [hereinafter Franks, images find their way to a site, either through vengeful expartners or thieving hackers, they become extremely difficult to remove.15Hollie Toups understood well the legal barriers surrounding the removal of these images. After discovering her seminude photographs online and desperately seeking a way to remove them, Hollie reached out to local law enforcement and legal services.16 She found little aid in the police officers and attorneys who told her that there was nothing she could do and often scolded her for taking the pictures.17 Finally, Hollie began working with local private investigators who were able to shut the site down on child pornography charges because some photos on the site displayed women under the age of eighteen.18 With few other legal options remaining,19 Hollie and several other victims filed a class action invasion-of-privacy suit against the owners of Texxxan.com and its web-hosting company, GoDaddy.com.20Unfortunately, under § 230 of the Communications Decency Act (CDA),21 website operators and their Internet Service Providers (ISPs) generally hold far-reaching immunity from the actions of third-party posters.22 This provision allows revenge porn websites and their hosts to retain immunity from the actions of the individuals who post the images so long as the website did not create or develop the material. …