Internet Privacy and Self-Regulation: Lessons from the Porn Wars

The availability and adequacy of technical remedies ought to play a crucial role in evaluating the propriety of state action with regard to both the inhibition of Internet pornography and the promotion of Internet privacy. Legislation that would have restricted Internet speech considered indecent or harmful to minors has already faced and failed that test. Several prominent organizations dedicated to preserving civil liberties argued successfully that self-help technologies offered less-restrictive means of achieving the purported ends of such legislation, rendering it unconstitutional. Surprisingly, those same organizations have of late joined the call for subjecting another kind of speech--speech by commercial entities about Internet users--to political regulation. With regard to privacy no less than pornography, however, self-help offers Internet users a less-restrictive means of preventing the alleged harms of free speech than does state action. Indeed, a review of privacy-protecting technologies shows them to work even more effectively than the filtering and blocking software used to combat online smut. Digital self-help in defense of Internet privacy makes regulation by state authorities not only constitutionally suspect but, from the more general point of view of policy, functionally inferior

“But, I Didn’t Mean to Hurt You”: Why the First Amendment Does Not Require Intent-to-Harm Provisions in Criminal “Revenge Porn” Laws

Free speech protection under the First Amendment to the U.S. Constitution is arguably one of the most essential rights that U.S. citizens hold. Since the founding of this country, a tension has existed between the government’s protection of free speech and an individual’s right to privacy. The Internet exacerbated this tension by providing an accessible avenue for the dissemination of private images for all to see. Nonconsensual pornography and “revenge porn” are at the epicenter of this issue. Today, one in twelve adults in the United States will become a victim of nonconsensual pornography during their lifetime. Despite the pervasive role of nonconsensual pornography in modern society, most existing state criminal laws are narrowly drawn and, as a result, fail to protect most victims from these devastating attacks. State efforts to pass statutes that provide more comprehensive protections to victims’ privacy are routinely frustrated by constitutional challenges under the First Amendment. This Note discusses the two most prominent types of criminal nonconsensual pornography laws—harassment-based statutes and privacy-based statutes— and explores the intersection between these laws and the First Amendment. This Note argues that, to sufficiently protect all victims of nonconsensual pornography, states must adopt privacy-based laws with no intent-to-harm provisions. Finally, this Note argues that these privacy-based statutes do not violate the Constitution, because they make permissible content-neutral restrictions on speech that should survive intermediate scrutiny when challenged under the First Amendment

Gender Equality and the First Amendment: Foreword

Gender equality demands equal opportunity to speak and be heard. Yet, in recent years, the clash between equality and free speech in the context of gender has intensified—in the media, the workplace, college campuses, and the political arena, both online and offline. The internet has given rise to novel First Amendment issues that particularly affect women, such as nonconsensual pornography, online harassment, and online privacy. On November 1–2, 2018, the Fordham Law Review brought together scholars and practicing lawyers from around the nation to address many of the pressing challenges facing feminists and free speech advocates today. The Symposium was a fitting topic to mark the occasion of 100 years of women at Fordham Law School. Over twenty scholars, practitioners, and writers participated in the two-day conference, along with Sylvia A. Law, Elizabeth K. Dollard Professor of Law, Medicine, and Psychiatry Emerita of N.Y.U. School of Law, who delivered the Robert L. Levine Lecture. Conference panels considered campus speech issues, including trigger warnings, safe spaces, and hostile classrooms; pornography, including nonconsensual pornography (or “revenge porn”); being female online and how the internet affects women’s reputations, self-expression, and privacy; words, images, misogyny, and the First Amendment; and how gender representation in the media and politics impact political outcomes and reproductive rights. This issue of the Fordham Law Review includes papers from six of the Symposium participants, in addition to Professor Law’s Levine Lecture

Missing Privacy Through Individuation: the Treatment of Privacy Law in the Canadian Case Law on Hate, Obscenity, and Child Pornography

Privacy is approached differently in the Canadian case law on child pornography than in hate propaganda and obscenity cases. Privacy analyses in all three contexts focus considerable attention on the interests of the individuals accused, particularly in relation to minimizing state intrusion on private spheres of activity However, the privacy interests of the.equality-seeking communities targeted by these forms of communication are more directly addressed in child pornography cases than in hate propaganda and obscenity cases. One possible explanation for this difference is that hate propaganda and obscenity simply do not affect the privacy interests of targeted groups and their members. In contrast, this paper suggests that this difference in approach reflects the adoption of an individualistic approach to privacy that may unnecessarily place it in tension with equality. In so doing, it sets the stage for an exploration of more social approaches to privacy that may better enable exploration of privacy\u27s intersections with equality and its collective value to the community as a whole

Porn Wars: Serious Value, Social Harm, and the Burdens of Modern Obscenity Doctrine

During the 1980s, anti-pornography ideologues—an unlikely alliance of feminist activists and right-wing evangelical Christians—waged an open war against pornography and the anti-censorship feminists who supported legal protection for pornographic works. Following a pivotal defeat of an anti-pornography ordinance in federal court, the ideologies constituted in the so-called “Porn Wars” continued to guide obscenity doctrine. These ideologies have informed lower courts’ understanding of the harms and values associated with sexually explicit content more than constitutional scholars recognize, at least explicitly. Although courts recognize core feminist values such as sexual autonomy and privacy in sexually explicit content, they have built doctrine that essentially forestalls the exchange of sexual content, even among consenting adults in private and quasi-private spaces. Anti-pornography presumptions of harmful effects predominate lower court decisions in ways that could produce disastrous consequences for artistic speech, privacy, and even public health

Censorship in Cyberspace: Closing the Net on "Revenge Porn"

The article reviews current privacy laws in the context of “Revenge Porn”. Given the speed at which images are published online, the article highlights the futility of breach of confidence and other civil actions in preventing publication at the outset. Furthermore, private law is expensive offering little protection against the victim’s humiliation. The article proposes that non-consensual pornography should be criminalised under the Coroners and Justice Act 2009 by way of a Statutory Instrument: Misuse of Private Information 2014

From Scanning to Sexting: The Scope of Protection of Dignity-Based Privacy in Canadian Child Pornography Law

The Canadian approach to privacy rights in one\u27s body is embedded in the relationship between interests in privacy, bodily integrity, and human dignity. Clarifying these interests is complicated by Canada\u27s middle-ground stance between the European dignity-based approach to privacy and the US liberty-based orientation. The Canadian approach is closer to the European model when intrusions upon the body are conceived as wholly or mostly non-consensual (e.g., strip searches, voyeurism, and most child pornography). However, once consent plays a potentially determinative rote, the US liberty-based approach gains ground. This reluctance to fully align dignity with privacy results in confusion about the scope of ongoing privacy interests in nude images, as evidenced by recent debates about the use of airport body scanners and the appropriate response to adolescent sexting. The author argues that a clearer alignment with a dignity-based approach emerging in Canadian child pornography jurisprudence would better address the harms caused by misuse of photography, as applicable to both children and adults

A Careful Design for a Tool to Detect Child Pornography in P2P Networks

This paper addresses the social problem of child pornography on peer-to-peer (P2P) networks on the Internet and presents an automated system with effective computer and telematic tools for seeking out and identifying data exchanges with pedophilic content on the Internet. The paper analyzes the social and legal context in which the system must operate and describes the processes by which the system respects the rights of the persons investigated and prevents these tools from being used to establish processes of surveillance and attacks on the privacy of Internet users