By: Danielle Citron, Lois K. Macht Research Professor of Law, University of Maryland
California’s Attorney General Kamala Harris has created a first-of-its-kind online resource designed to assist law enforcement in understanding and investigating crimes related to the cyber exploitation of a person’s nude images in violation of privacy and without consent (also known as nonconsensual pornography). Before discussing the resources created by AG Harris’s Task Force, let me first briefly explain the destruction caused by nonconsensual pornography, one of the many ways that networked tools can be used to exploit vulnerable individuals and to harass, stalk, terrorize, and ultimately deprive them of life’s crucial opportunities.
What is the cyber exploitation of nude photos?
Let me begin by explaining a bit about nonconsensual pornography—the posting of someone’s nude photos in violation of their privacy, often alongside the person’s contact information. Victims’ nude photos and contact information often appear in online ads that falsely suggest that they are interested in sex. Online searches of victims’ names prominently feature the posts with victims’ nude photos. People from all walks of life are targeted in this way: law students, teachers, dentists, nurses, and business owners. Victims of nonconsensual pornography do have one important thing in common, however. As a study conducted by the Cyber Civil Rights Initiative makes clear, 90 percent of nonconsensual pornography victims are female.
The damage of nonconsensual pornography is overwhelming. Victims fundamentally change their lives. They leave their jobs, move from their homes, and changed their names because they cannot imagine getting a job with a decimated online reputation.
The professional costs are steep. It is hard to get a job or to keep employment if one’s nude photos appear online. Teachers have been fired after their nude photos appeared online. According to a recent Microsoft study, over 90 percent of employers use search results to research candidates and in over 80% of cases there is a negative result. One can’t blame employers for refusing to interview victims—as between two equally qualified candidates it is easier and safer to hire person who does not come with this sort of baggage.
Victims are emotionally devastated. As victims explain, their anxiety is often overwhelming. They feel humiliated and embarrassed. And the abuse is silencing. Victims shut down their blogs and withdraw from online life.
Ultimately, the cyber exploitation of nude images without consent deprives victims of life’s crucial opportunities—to work, get an education, socialize, and engage in self-expression.
Current problems with the enforcement of existing criminal law
As my book Hate Crimes in Cyberspace explores, when victims go to law enforcement, they are often told to turn off their computers. They are turned away on the view that the abuse is “just in cyberspace.” It is not that law enforcement are not interested in helping victims. It is that they lack training about the problem, an understanding of investigatory tools, and a strong grasp of the laws that can be used to combat the problem. Too often, police officers are intimidated by the technology and do not understand the law.
But that should not be the case. Existing criminal law often prohibits cyber exploitation. California, like 25 other states, criminalizes the nonconsensual posting of nude photos in violation of someone’s privacy and without consent. Most states have laws against harassment, stalking, threats, and extortion.
The Task Force’s Work and Online Resource Hub
About a year ago, I started working with the AG and her executive team to help solve this problem. AG Harris put together a Task Force made up of advocates, technology companies like Google, Twitter, Microsoft, Facebook, and others, and law enforcement representatives. The Task Force worked on many things, including supporting legislation enabling officers to get a warrant for misdemeanors involving nonconsensual pornography, creating tools for law enforcement to use to help them investigate crimes related to nonconsensual pornography, empowering victims to know their rights, and creating best practices for online platforms to follow.
AG Harris’s Cyber Exploitation Resource Hub includes various tools to help law enforcement in her state. The Hub has a law enforcement bulletin that includes a summary of all of the state (California) and federal laws that can be brought to bear against individuals responsible for posting nude images without consent. The bulletin highlights the responsibilities of law enforcement agencies in combatting these crimes. In collaboration with California Commission on Peace Officer Standards and Training (POST) and the United States Attorney’s office, the Attorney General’s office also developed a Frequently Asked Questions and Commission on Peace Officer Standards and Training (POST) Cyber Exploitation Guide for Law Enforcement.
In short, Attorney General Kamala Harris has set a major milestone in the fight against cyber exploitation. In my research for my book Hate Crimes in Cyberspace, I interviewed more than 50 exploitation victims. Victims had a hard time finding employment because their nude images and contact information appeared prominently in online searches. They were terrified that strangers would confront them in person. They moved; some changed their names; all were distraught. The fallout was devastating. AG Harris’s work is ground breaking, educating victims about their rights, providing training to law enforcement, securing essential legislation, and working with companies on best practices. These efforts are a model for the rest of the country.