There’s much to be said for both revenge and pornography. Revenge porn? Not so much.

by Eileen | 4:41 pm, February 6, 2013 | Comments Off

In life, there are few absolutes.  ‘Never pose for a nude photo unless you’re alright with the every soul on the planet possessing a copy’ is, however, just such an absolute.

Morally, it’s repugnant that anyone would steal or misuse such an image of another person.  Morally, any adult has the right to engage in the consensual production, use, and sale of pornography.  Realistically, the mere existence of sexually explicit content tempts those who possess it to misuse it.  Realistically, being linked to pornographic material will dramatically and possibly irrevocably alter your reputation and the opportunities you might expect.

That might be a good thing; if you are in pornography, wide-distribution of pornographic images featuring you is kind of the point.  However, for most people, there are few, if any, benefits to publication of explicit images.  More to the point, for the vast majority of us, any pornographic images were created to be shared with one other person and, if they see widespread publication, it’s against our wishes.

Too often I find myself getting into conversations with people who are so wrapped up in explaining, over and over, the moral ideal that they never get around to assessing reality.  It’s not admitting defeat to accept certain undying realities about your fellow man and the world you live in.  It’s pragmatic and, in this case, it’s about reputation management and controlling your own image.

Policy, like art and morality, is about drawing a line.  None of us may do anything we like and expect not to be judged.  Yet all of us have an expectation of privacy.  All the yammering should be about what is an individual’s responsibility and what is the realm where the state steps in with civil and criminal remedies.

Yes, wouldn’t it be lovely if the things we said in private and the personal image we created or consented to be in never ever got out into the wide world.  But if you think that’s how things will go, you are asking for a very painful awakening.  I would also point out to anyone feeling young and invincible that a great deal of what you think is cute and harmless will cause you to weep bitter tears sooner than you think if you aren’t judicious about sharing.

This is both a strong suggestion and a context for the suddenly redhot issues of a Colorado Springs based ‘revenge porn’ website, which is not getting a link here.  PPC has some standards.

Revenge Porn is the jargon for websites that solicit explicit images for publication and derision.  Overwhelmingly, the images are of women, submitted by jilted suitors, hence the moniker.  These websites are well aware that they images they solicit are posted without the knowledge and against the wishes of the subject.  Facilitating the vengeance of those who submit them by exposing the subject of the image to scorn and harassment is the entire point.

The home-grown abomination that is suddenly igniting the blogosphere is Craig Brittain’s ‘Is Anybody Up?’  The site solicits dirty pictures and asks the submitters to provide as much personal information about the subject as possible.  Images then go up with impressive dossiers accompanying images, including contact information.  For the women in these pictures, the results are predictable.

Of interest are Brittain’s arguments for the legality and merit of his site and the legal experts’ opinion of what his downfall will be.

A 28-year-old of the sort most succinctly described as a ‘loser’, Craig Brittain takes legal cover behind Section 230, the portion of the Communications Decency Act that exempts website owner and operators from liability for user posted content.  He also alludes to the ‘safe harbor’ provision of the DMCA, though claiming that requires having a DMCA agent who responds to take-down requests, a criteria that Brittain most emphatically does not fulfill.  Thus, no small part of the argument around his website debates whether 230 immunity applies when the website owner actively solicits the material, curates and manages the content, and refuses to honor take-down requests (more on that in a minute).

In interviews, Brittain piles on the prevarication with guile that would shame a U.S. Senator.  He lies, he knows it we know it, he knows that we know, and he doesn’t care.  At all.

Speaking to a local CBS affiliate, he described his project as great fun: ‘We don’t want anyone shamed or hurt. We just want the pictures there for entertainment purposes…We’re not out for revenge or being malicious.” Well if he believed that, his site would have long since gone dark.

According to his own blog (which we are also not honoring with a link), even he’s not entertained:

I really hate this job and I do not do it for revenge, to hurt people, etc., I do it because Barack Obama is the second worst President in US history (second only to Jimmy Carter). The job market is really screwed up. A talented guy like me is easily worth seven figures or more in a good economy. … Do you know what I’d be doing with my life if it wasn’t for this website? Nothing. Zilch. Zero. Back against the wall, going to interview after interview and being rejected like every other honest, hard-working American.

(N.B. Craig, you forgot about James Buchanan.  And Barry deserves blame for quite enough without you trying to pin your dirty work on him.)

Brittain also touts his business model.  And that’s where the refusal to honor take-down requests comes in.  Subjects of photos are directed to send $250 to ‘David Blade, III’, an attorney specializing in IP law.  Only David Blade does not exist and his site shares an IP address with Craig Brittain.  ‘Is Anybody Down’ is an extortion racket that solicits shaming images of women from angry exes and then tells women to pay to stop the humiliation…and the phone calls from the sort of men who think cold calling the subject of involuntary pornography could ever lead to a date.

(Seriously, I would love to get inside the head of a man who cruises a website like that and actually contacts the subject of an image.  According to some of the victims, they do receive calls and e-mails from men who aren’t just calling up to spew bile but who are actually seeking dates.  What is the logic of a man deciding to make that call?  How does that call even go? “Hi, I like to cruise websites that specialize in posting explicit images of women against their will. By the way, that would be you.  So, listen, what are you doing for dinner tomorrow?”  I imagine the general answer is that the sort of man who frequents this website can’t imagine that a woman might not want him.  Still, the inability of the human male to consider how he comes across can be pretty mind boggling.)

Elsewhere, he’s claimed his own site is a parody of Hunter Moore’s now-defunct ‘Is Anybody Up?’.  One wonders if Brittain isn’t savvier than he looks, laying the foundation for defense on as many grounds as possible.

There are certainly other staggeringly insincere lines.  One moment, Brittain insists he seeks and solicits personal information about women on the site in order to share “who the women are and what they are about”, as if he’s a holistically minded matchmaker.  The next, he chirps about his dream to make “involuntary porn” into a big business. For that to work, his fraudulent take-down service must thrive, meaning he’s literally banking on “revenge and being malicious”.

The soi-dissant ‘entrepreneur’ then asks us to believe he ultimately wants to put himself out of business.  “We are headed to an era, one of the most open and tolerant eras for people’s beliefs that we’ve ever seen, where people would accept each other regardless.”  Brittain would have us believe he wants nothing more than an era where no one is judged for anything.

Coming from someone who believes such bile, a statement like that would indicate a childish mind; humans will never not judge one another, nor would that be a desirable state.  Behavior and reputation and very telling; it’s a false debate to quibble about whether we should discriminate when the real issue on what grounds are and are not game.  But Brittain isn’t the least bit sincere about this.  People who genuinely don’t care about their reputation or who can afford to ignore their own ‘involuntary porn’ are people from whom Craig Brittain will never make a penny.

He’s no apostle of sunshine and relativism.  No, this one is the pure descendent of fire-and-brimstone preachers, the profiteers of manufactured shame.

Morally, he’s barely hovering above a Nazi apologist.  Asked to speak to the moral dimension of what he does, Brittain evades.  Is he sleazy?  “We live in a really sleazy society.”  Not answering the question.  Normative.  And inviting the follow-up question of why society is so sleazy.  Is he moral? “‘I see myself as gray.  I do things that people may see as morally ambiguous, but I have a greater goal in mind.”  ‘Ambiguous’ is self-flattery.

Psychologically, he’s a raging misogynist and a possible psychopath.  His own emails raise the question of what groups he isn’t baiting.  Anonymous targeted him and published a trove of documents, including old blog posts that reveal a duel hatred of women and an entitlement to their attention and affection.  Unchecked, I see a rape charge in his future.  Yeah, but, legally?  Is he touchable right now?

Maybe.

The automatic thought is that invasion of privacy and defamation torts will be his death.  But those can be hard to win and the potential damages aren’t always high enough to attract talented attorneys.  As I am told, copyright is where it’s at.  But even that only applies to victims who originally took the picture(s) they’re in.  That’s a start for women who had their personal images stolen.  Women who consented to let someone else take explicit photos and wound up on Brittain’s site when the relationship soured are in a harder position.  I haven’t seen a percentage breakdown of how many of Brittain’s victims own the copyrights, and I suspect the worst photos are those taken by ex-lovers, meaning those copyrights belong to the last person likely to participate in a suit.

All those remedies are still civil, and they may serve to wipe out Brittain’s ill-gotten booty and to shutter his website.  But the civilized portion of the human race would like to see far worse done to this man.  A few images he’s posted are allegedly of minors.  Going to prison for child porn would be about what Craig Brittain deserves, but that still wouldn’t settle the matter of how far fair use, 230 immunity, and the First Amendment can go to protect people who do this sort of thing.

It’s established that the First does not protect tortous acts.  One attorney pointed out that as the production of pornography for public consumption is a sexual act, it requires consent if it is to have any legal protection.  That’s interesting; could Craig Brittain be gotten for some sort of sex crime?  Others have suggested that it’s only a matter of time before a victim of ‘Is Anybody Down?’ is assaulted by someone who found her through the site, which is almost certainly true.  However, any conviction on that still wouldn’t speak directly to the legality of the site itself or the practice of revenge porn in general.

Another possible legal avenue is to litigate for extortion, though that’s untested water and could set a precedent that would be rapidly exploited for frivolous lawsuits.  At times like this, even non-legal minds start to grasp the advantage of exceedingly narrow opinions.

What’s offensive about Brittain’s site is that subjects don’t consent and don’t have the option to do so.  It’s not necessarily the content; it’s the way in which the content is got and the way the subjects are systematically and deliberated violated.  Setting a precedent based on copyright or extortion isn’t necessarily the way to go.  Then again, letting the Craig Brittain’s of the world go on indefinitely as legal minds seek the perfect strategy doesn’t appeal.

That may bring me back full circle to one thing that is a remedy.  Before you put anything out there or allow any photo to be taken, think about how you would feel and what it would mean for you if that content were broadcast. No matter how much you win, that image is now out there forever.  Any legal remedies can only be partial.  Don’t even put yourself there.

One way or another, Craig Brittain’s days are numbered.  Too many people are angry at him.  However the courts get him will lead to some consequences for further jurisprudence.  Someone will find a way around whatever leads to Brittain’s downfall, but the certainty of revenge porn 2.0 is no reason not to deal with the existing problem.  A copyright approach would at least reinforce the idea that the owners of the images must give explicit and affirmative consent for use.  Written narrowly enough, an extortion-based reasoning could also work; the guy is extorting his victims and it’s not that difficult to envision a ruling that would address take-down scams without creating a loophole for frivolous torts.

If nothing else, I’d urge the lawyers to hurry up and deal with Mr. Brittain before he falls prey to a decidedly extrajudicial remedy.

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