Indeed, it is a dirty business: websites that expose the most private and intimate moments in a person’s life to destroy their reputation.

 

Like Sherlock Holmes’ Lady Eva Blackwell who had penned flirtatious letters to a young suitor years before her engagement to the Earl of Davenport and had those letters used against her by an unscrupulous blackmailer, people today find themselves the victims of vicious invaders of personal privacy through what has become known as “revenge porn.”

 

A 2014 article in The Economist reported there are at least 3,000 websites worldwide that routinely post salacious photos and intimate personal information about people designed to embarrass and even destroy their reputations.

 

In a February 3, 2015 article posted on Justia’s Verdict website, columnist/author Joanna L. Grossman and famed law professor Lawrence M. Friedman defined “revenge porn” this way: “Today, in the age of the Internet, there is a new and startling development, a vicious and potent descendant of the mess Lady Blackwell was in. This is so-called revenge porn. The definitions of this term vary; in general, it is used to describe sexually explicit and naked pictures or videos of a person, posted or shared online without his or her consent; and with the vast potential for harm. The term ‘revenge’ reflects the context: the source is usually a former partner, who post the photos or videos to shame, humiliate, or embarrass an ex-lover. In the most objectionable form, it is not only the images that are posted, but also identifying information—such as the victim’s name, address, and social media profiles.”

 

Over the last decade, websites have continued to spring up worldwide to traffic in this sort of revenge porn. But there have been some recent developments that will make it more difficult for these websites to stay in business in this country. First, one of the kingpins of revenge porn recently became the first person convicted in the U.S. of running a revenge porn website. Kevin Bollaert, a 28-year-old San Diego resident, was convicted earlier this month of 27 felony counts of identity theft and extortion, and now faces up to 20 years in prison. Known as the “sleaze digital maestro,” Bollaert charged people, mostly women, $350 to take embarrassing photos or sexually explicit images down from his now-defunct websites.

 

And this past December another California resident, Noe Iniquez, received a one-year jail sentence under that state’s new revenge porn law for uploading revenge porn.

 

And the FTC has now taken notice of revenge porn sites. Just days before Bollaert’s conviction, the Federal Trade Commission shut down a website operated by a Colorado resident named Craig Brittain who posted nude photographs of hundreds of women, along with their Facebook profiles and other personal information.

 

He then blackmailed the victims to pay “bogus lawyer sites,” which he controlled, in the hopes that their photos would be removed. While the FTC shut down Brittain’s operation and forbade him from running any future “revenge porn” sites, he did not face any penalty, and will not unless he violates the FTC’s order, which included destruction of the photos.

 

And in early January the State of Illinois joined sixteen other states that have passed laws dealing with revenge porn websites. The Illinois law, which takes effect June 1, 2015, is by far the strongest anti-revenge porn legislation in this country. This law is different from other state laws dealing with anti-revenge porn because it focuses on the harm done to the victims by making it a crime to disseminate someone’s intimate selfie without his or her consent. The new law makes it a Class 4 felony punishable by one to three years in prison, a possible $25,000 fine, and restitution to the victims.

 

Some First Amendment supporters have expressed concerns about the impact these anti-revenge porn efforts will have on free speech. New York lawyer and privacy rights activist Carrie Goldberg made these recent comments before an international business group about anti-revenge porn laws:

 

“So much is said about how laws butt up against free speech, but if we lose the expectation of privacy in taking images meant only for someone we trust, then we lose another valuable form of speech: our private speech. There is nothing wrong with taking pictures of yourself that are meant only for another person you trust.”

 

While the State of Texas does not have a specific revenge porn law, a Houston woman was awarded $500,000 in civil damages last year after photos she took for her ex-husband ended up on a number of websites.

 

Prominent Houston criminal defense attorney Mark Bennett is not as quick as Ms. Goldberg to embrace specific anti-revenge porn legislation.

 

“We don’t want to rush off and unprotect a certain category of speech because that always has unforeseen collateral consequences,” Bennett told the Houston Chronicle last year. “Once you open that particular door, you don’t know what you’re letting in.”

 

Grossman and Friedman, however, had this take on this growing debate:

“Privacy, in human history, is a relatively recent concept. Nobody had much privacy in the middle ages, even kings and queens, at a time when crowds watched a queen give birth, and the king received visitors on the chamber pot.

 

Technology and concepts of privacy grew up together—as both friends and enemies. The late 19th century invention of the candid camera made it possible, for the first time, to take someone’s picture without that person’s consent. This fact was in the background of the classic article by Warren and Brandeis (1890) that launched the right of privacy. Now, today, we have smart-phones with cameras, selfies, the Internet, social media, and the like. The dangers have been multiplied greatly.

 

“It is hard to feel much sympathy for those who go in for revenge porn; and least of all for those who make a business of exploiting the victims. The victims, to be sure, have often been extremely foolish: even without the problem of revenge porn, naked or explicit selfies are not a good idea. Lady Blackwell’s letters could be and were destroyed; but the Internet is forever. Like the proverbial elephant, it never forgets. The law can perhaps help in some extreme cases; but in the end the best solutions are self-control with the camera—and more sensible choices of partners and lovers.”

 

Like we said, it is indeed a dirty business, one that raises interesting constitutional dilemmas.