Confronting Nonconsensual Pornography with Federal Criminalization and a “Notice-and-Takedown” Provision

While the issue of nonconsensual pornography (also known as"revenge porn") has recently been brought into the limelight because of events like the recent online postings of celebrities’ intimate photos, non-celebrities have been targeted in this way since long before the recent hackings, and their lives are also changed in the worst possible way. The harms that result from the unconsented-to distribution of an individual’s intimate photos and videos are severe and — thanks to the increasing technological capability to spread information like a forest fire on the World Wide Web — oftentimes long-lasting. Legal scholars have proposed a variety of strategies for combatting nonconsensual pornography and giving victims some sort of recourse once the initial damage has been inflicted.This Comment suggests that an alternative proposal to help nonconsensual pornography victims regain their reputation, their privacy, and their lives, is to federally criminalize the nonconsensual distribution of a person’s intimate images or videos, and include in the law a safe-harbor provision with a "notice-and-takedown" procedure similar to the provision in Section 512 of the Digital Millennium Copyright Act. The modified safe-harbor provision would require internet service providers to follow certain procedures (e.g., set up policies that, for example, prohibit the uploading of nonconsensual pornography and require a consent form to be uploaded along with intimate media). This would essentially bind the hands of internet service providers to remove nonconsensual pornography or links to nonconsensual pornography from their websites in order to avoid criminal liability. A major component of the safe-harbor provision would be the requirement that internet service providers implement certain deterrent provisions in their online content policies. These provisions could include the required suspension or deletion of user accounts that upload nonconsensual pornography (similar to what many websites already do in response to posting of child pornography) and a requirement of an affirmative showing of consent — by the individuals depicted in the intimate media — either up-front at the time of initial uploading or by counter-notice after the media is taken down in order for the media to be re-uploaded. Information content providers that are not also service providers would not have immunity under the safe-harbor provision because they directly posted the illegal content. Part II of this Comment explains what nonconsensual pornography is and what harms it causes to victims, provides background information on the rise of nonconsensual pornography, and discusses how victims often have no recourse under current law. Part III sheds light on just a few of the previous proposals for solving the problem of nonconsensual pornography and discusses why each proposal, although useful in the movement to help victims, alone is insufficient and would be buttressed by federal criminalization with a modified notice-and-takedown provision. Part IV maps out a possible alternative solution to the problem of nonconsensual pornography: federal criminalization with a notice-and-takedown provision similar to Section 512 of the Digital Millennium Copyright Act. Part V concludes that the alternative solution proposed in this Comment could provide another tool in the arsenal of legal strategies that victims have to fight back against the individuals who seek to cause so much harm.