Amanda Marcotte at TalkingPointsMemo makes the essential point succinctly. There is nothing un-libertarian about standing up to forcing a woman to be in pornography:
“As long as revenge porn is legal, it is legal for a man that you’ve rejected to force you into a relationship with him anyway, and a sexual one at that, as he uses your body for sexual ends against your will online over and over and over again. With this understanding, we’ve already got laws limiting the trade of child pornography. Free speech will survive forcing men to merely mouth their bad opinions about their exes online instead of conscripting them into pornography.”
This is exactly correct.
Anyone whose pictures or intimate information is forcibly put on the net against their will is being subjected to public voyeurism, which is a misdemeanor, even off the net.
It should also come under the common law of tort, in that it is a public disclosure of private information.
But then consider the amplification provided by repeated downloading on the net and what you have is a multiplication of the original offense, compounded by the fact that the voyeurs are strangers, often with a malicious intention.
The exact crime then would be multiple public voyeurisms, to which are added sexual humiliation, invasion of privacy, false light and defamation, and, of course, plain harassment and stalking .
Revenge porn is in addition enforced sex-work, a form of online prostitution, really, because a number of the viewers would be looking at the pictures in lieu of paid pornography.
Where I differ from the mainstream consensus is in not seeing this as a uniquely feminist or even sexual issue.
Enforced humiliation isn’t confined to sexual imagery of ex-girlfriends.
What about computer hacking of private information that is then posted online anonymously, as a way to coerce, punish, threaten?
What about emails or phone conversations with activists (in my case) where the content is not sexual but political?
What about medical information or pictures?
What about police galleries filled with mug-shots shaming people perpetually, often over trivial offenses?
What about sensitive financial information? Or photos that are doctored? Or emails that are faked?
There are scores of things that could permanently damage someone.
And that is the issue. The net is both quantitatively and qualitatively different from the non-virtual world. It’s time we recognized it.
We give a statute of limitations to crimes in the “real world” but when it comes to the net, everything stays for eternity.
Behavior that would considered criminal or sociopathic in the world (steaming open people’s postal mail, spying on their bedrooms or bathrooms, following them, threatening or blackmailing them) is somehow fine when it’s done on the net.
The question of how the law would work is a different one.
I’m not certain the current law being adopted in California and other places is even helpful, although it surely raises the issue powerfully.
The net has not been properly conceptualized and analyzed in the legal profession yet, so that existing laws aren’t properly interpreted to cover forms of digital crime. There may indeed be no reason for additional laws, if the current ones were correctly interpreted, but that hasn’t happened yet.