With technology today becoming more advanced, internet crime is a vastly growing problem in society. The Internet is a place with limited restrictions, and many people praise the accessibility and freedom it has to offer. People in America are affected by internet crimes on a regular basis. Perpetrators are moving away from committing crimes on the streets and are doing it from behind a screen in the comfort of their own home. The uprising of Internet crimes has forced states to implement and consider new laws to better protect the people. Although a handful of states have taken action against these crimes, it is still not enough. Many of the laws do not protect the people entirely. In Sally Sawyer’s case, she fell victim to such crimes and faced the consequences of having limited, underdeveloped laws when she instilled her trust in the wrong person. The small portion of laws in place throughout the country are not equipped to protect individuals from the unguarded and unruly territory that is the Internet.
Sally Sawyer began talking to Evan123 and after several weeks felt as though she could trust him. The two began exchanging personal information, such as their full names, the college they attended, and their hometowns. As time went on, Sally was developing strong feelings for ‘Evan Elber’ (aka Evan Ewing). Evan asked Sally to start sharing intimate photos, and she agreed because she trusted him. Their intimacy accelerated, and Sawyer agreed to video chat with Ewing. After the naked encounter, Evan chatted Sally and told her that he had recorded the whole thing. Unlawful surveillance is the action of unlawfully filming another person in a state of undress or engaged sexual activity (Lieberman, 10-25-18, 23). Sally was not aware that Evan would record the encounter. At no point was Sawyer told that she was being recorded nor did she give consent to being recorded. Therefore, when Ewing stated that he recorded the content and was ready to use it against her, she did not know that this was a possibility. The question that must be considered is whether or not Ewing unlawfully recorded the video chat of Sally’s naked body (Lieberman, 10-25-18, 23). Sawyer has an expectation of privacy, and there is, fortunately, one statute in Rhode Island that protects a victim from unknown recordings. The statute in Rhode Island is video voyeurism (Lieberman, 10-25-18, 20). The Rhode Island Statute states that “a person is guilty of video voyeurism when, for the purpose of sexual arousal, gratification, or stimulation,” a person uses a device to capture images of intimate areas of another person without their consent or knowledge (Lieberman, 10-25-18, 24). The video did, in fact, expose intimate parts of Sawyer’s body, and Ewing even admitted that he “liked what he saw.” Therefore, he can be held legally accountable for the crime if it is found that the recording was for sexual gratification or purposes (Lieberman, 10-25-18, 24). Sawyer should take action against Ewing under the Rhode Island Statute of Video Voyeurism, and if he is found guilty, he can face up to three years in jail and/or a fine of no more than $5,000 (Lieberman, 10-25-18, 24).
Sextortion is the act of forcing an individual to either pay money or perform sexual acts by the threat of revealing private information about that individual or publishing their sexually exploitive content (Lieberman, 9-13-18, 20). Included in Ewing’s response to Sawyer, he threatened to expose her naked pictures and video to everyone she knew if she refused to video chat with him every day at 9 pm. Sawyer was afraid of the power Ewing now had so she complied to his demands out of fear. Even when Ewing’s demands grew Sawyer complied and gave him everything he wanted. Ewing was able to obtain her passwords to her social media accounts, control of her social media, access to her PayPal account, and her friends’ contact information. Therefore, Ewing is violating statutes that protect society against sextortion as he used the threat of posting the intimate footage against her to obtain further control of her life. Since Ewing is in Florida, he can be held accountable under Floridian Law. The question to consider is whether or not Ewing can be charged with sextortion in the state of Florida. Sawyer could choose to file a suit for extortion, which is section 836.05 of Florida Statutes. The statute states that “an individual can be found guilty of extortion if they intentionally threaten a person to imply psychological harm as a means to compel the victim to do any act against their will” (The Florida Senate, 2011). If Ewing is found guilty, the offense is considered a “second-degree felony that is punishable up to 15 years in prison, up to 15 years of probation, and/or a fine not more than $10,000” (The Florida Senate, 2011).
Sawyer also has the option to file for copyright of the pictures she sent to Ewing and the video he took, so they could not be published without her consent. If she were to copyright the materials, the law would require that those who do not own the rights cannot publish the content or distribute it as if it were their own, this would include the porn sites that would later publish them (Lieberman, 11-1-18, 20). If the intimate pictures were sent after she had it copyrighted, Ewing and other websites would be committing copyright infringement (Lieberman, 11-1-18, 20). In that situation, Sawyer could file a civil suit for damages and a notice to take down the content. The best option for Sawyer would be to file a suit against Ewing both civilly and criminally. Filing both suits would make it, so she does not have to submit to Ewing’s demands or have her intimate pictures sent to her friends, family, peers, and professors (Lieberman, 10-25-18, 1). There is a probable chance that Ewing would be found guilt which would give Sawyer some remedy. Sawyer may also consider going after Google and Reddit since those are the sites Ewing used for the intimate exchange. Unfortunately, going after Google and Reddit might not be a logical option for Sawyer because of Section 230. Section 230 protects internet providers from liability of material posted and sent by its users (Lieberman, 11-1-18, 14). Under Section 230, websites are not treated as publishers of any information that is posted on their site, which would make it hard for Sawyer to create a strong case against Google or Reddit as they are exempt from liability.
Unfortunately for Sally Sawyer, reporting the conduct to the police in Rhode Island only made matters worse. Sawyer had finally grown tired of the discomfort and wanted to take action, so after she reported Ewing to the police and found out he was in Miami, Florida, she stopped video-chatting with him. During Sally Sawyer’s online relationship with Evan Ewing, she felt comfortable sending him private, intimate pictures of herself since she felt she could trust him and enjoyed having an intimate relationship. Unfortunately for Sawyer, he ended up using these private images for means of revenge after she reported to the police. He sent the intimate images to her friends, family, and professors. He even went so far to send the video from their video chat to several porn sites. Non-consensual pornography is defined as, “the distribution or publication of nude or sexual images or videos without the consent of the person convicted.” (Lieberman, 10-18-18, 3). The definition of non-consensual pornography matches precisely what Ewing did for revenge against Sawyer, as well as online impersonation. Fortunately for Sawyer, she has several options regarding moving forward with the issue of non-consensual pornography. The question that stands is whether or not Ewing can be charged for non-consensual pornography under Rhode Island law. Rhode Island, recently, passed a revenge porn bill in 2018. The bill finds “a person guilty of revenge porn if one intentionally disseminates, publishes or sells a visual image that identifiably depicts another person 18 years or older engaged in sexual conduct or the intimate areas of the individual without their consent” (RI. Stat. 2018). If Sawyer chooses to file a suit against Ewing, she would have a strong enough case to find him guilty. In the case of a guilty verdict, it would be a misdemeanor and Ewing would be subject to not more than one year in prison, a fine not exceeding $1,000, or both (RI. Stat. 2018).
Fortunately for Sawyer, Florida has had a nonconsensual pornography law since 2015. Since Ewing was in Florida at the time of the cybercrimes, he can be held accountable under Florida jurisdiction. Under the Florida Statutes, Ewing would be charged with sexual cyberharassment under section 784.049 (FL Stat § 784.049, 2016). The sexual cyberharassment law finds that “a person depicted in a sexually explicit image taken with the person’s consent has a reasonable expectation that the image will remain private and that for persons to publish a sexually explicit image of another without the person’s consent, with the intent of causing substantial emotional distress to the depicted person is psychologically harmful” (FL Stat § 784.049, 2016). If Sawyer were to move forward with a civil suit, it is likely that Ewing would be found guilty under this Florida statute. If Ewing is found guilty, he would be ordered to pay monetary damages of $5,000 or higher depending on the actual damages incurred by the victim and would also be liable for jail time (FL Stat § 784.049, 2016). Sawyer could also consider handling the situation in family court, as her and Ewing had an intimate online relationship, she could be granted a same-day order of protection. The order of protection would restrict harmful behaviors, such as posting or distributing sexually exploitive content (Lieberman, 10-25-18, 3). Therefore, she could quickly acquire the order of protection to stop Ewing from distributing them further.
Online impersonation is seen when a harasser creates a fake account through the use of one or several social media outlets for the purpose of harming, defrauding or intimidating the individual they are pretending to be (Lieberman, 10-25-18, 39). Ewing stayed true to his threats and created an email in Sally’s name and began sending the naked photos and video to her parents. He was angry and decided to use, what was once consensual pictures, as a form of revenge. An important subject to consider is contextual consent, which is the consensual sharing of an image or video with one person is not a waiver for the recipient to share the content with other people or the Internet (Lieberman, 10-18-18, 19). Although at the time Sawyer sent the images to Ewing it was consensual, the distribution of the images to another person constitutes an invasion of privacy. Out of spite, Ewing created the fake email posing as Sally and covered all the stops by filling the inboxes of her family, Salve students, and professors with the intimate pictures and video.
Luckily for Sawyer, action could be taken against Ewing as there is evidence to prove that he is impersonating Sally. In section 11-52-7.1 of the Rhode Island General Laws, a person commits the crime of online impersonation if they, “use the name of another person to post one or more messages on a commercial social networking site or sends an electronic mail, instant message, text message, or similar communication without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person.” (Lieberman, 10-25-18, 40). Not only did Ewing create the fake email account with Sawyer’s name attached, but he sent the pictures and video to multiple people without her consent all for revenge. If Sawyer were to file a lawsuit against Ewing, he would be found guilty of a misdemeanor and would be subject to up to one year in prison, a $1,000 fine, or both. Ewing might also be ordered to provide additional restitution to Sawyer for the harm he caused her (Lieberman, 10-25-18, 41). Since the images were sent to Salve faculty, she could file the suit as it could potentially keep Ewing from affecting the future of her academics and would also keep him from interjecting in her life more than he already has. (Lieberman, 10-25-18, 1).
One issue present that does not affect Sawyer is when a person harms by doxing. Doxing is the publishing of private or identifying information about an individual on the Internet most commonly with malicious intent (Lieberman, 9-27-18, 4). Sally Sawyer’s friend, Jen Judge, was able to trace some of the emails to a specific address in Miami. After further research, she found that it belonged to Ewing. From there Judge went online to “ReportBadMen.com” and started posting that Ewing was a criminal and destroyed her friend’s life, alongside a photo she found of him. It did not specify whether or not Judge posted the address she had acquired, but if she did that poses the question as to whether or not Ewing could pursue this as an invasion of privacy (Lieberman, 9-27-18, 34). Ewing might find relief in suing the website for allowing this potentially harmful post to be published. A problem could arise in doing so because of Section 230, as it “protects internet services from liability of material being posted by its users” (Lieberman, 11-1-18, 14). Instead of going after the site, it might be best if he sticks to his defamation suit, which would only be effective if the information posted about him was (Lieberman, 11-1-18, 7). Ewing could also consider filing a suit for cyber harassment. In Rhode Island, it is a crime to cyberstalk or cyber harass someone under section 11-52-4.2 of the Rhode Island General Laws. “An individual is guilty of cyber harassment when they transmit communication via a computer to a person or for that person to be contacted for the purpose of being harassed” (Lieberman, 9-27-18, 34). If the individual is found guilty of the misdemeanor, they may be imprisoned for not more than one year and/or receive a fine up to $500 (Lieberman, 9-27-18, 34). Judge could make the argument that they had the right to post under the First Amendment. If Judge is penalized for the post or it is restricted, the infringement upon freedom of speech would be going against the purpose of the constitution and legal restrictions already enforced.
Regarding local media publishing the story, Sawyer once again has an expectation of privacy. Posting a still shot of her naked body for the public to see would be infringing upon her given right of privacy. Although the right to privacy is not stated in the constitution, it is a right that all citizens have and expect to have, to a certain degree. In this instance, blurring out her face does not help hide her identity. If Sawyer did not give the media outlets consent to use the photo of her then they, like Ewing, can be charged with non-consensual pornography in the state of Rhode Island. The media would be publishing a photo that exposes Sawyer’s private, intimate parts without her consent and therefore would be found guilty under the Rhode Island Statute (RI. Stat. 2018). If Sawyer decides to take action, the media that posted her photo in an effort to show the public the extreme nature of such crimes would be charged with a misdemeanor and could face hefty fines (RI. Stat. 2018).
As shown above, Sawyer is one of the many people affected by internet crimes. Fortunately for Sawyer, each crime that was committed against her had some remedy. Ultimately, the laws that govern the internet are not extensive enough to cover everything that happens to people like Sally. Everyone deserves justice, which is why Sally Sawyer should fight for justice, not only for herself but for anyone else that may fall victim to such crimes. The laws in place today throughout the United States have proven to be effective, but only to a certain extent and with an ever-changing society, there is always room for the development of more legal culpabilities for offenders.
Part II:
The Rhode Island and Florida legislation provided Sally Sawyer with many protections and options to proceed forward, but while there were good opportunities in place, there were also areas of the law that were lacking. Sawyer only found some protection and legal remedies with online impersonation, nonconsensual pornography, and sextortion, and unlawful surveillance, but in general, she was not provided enough aid and security. Rhode Island and other state’s nonconsensual pornography laws are not enough. At this time there is no federal law prohibiting either the production or distribution of non-consensual pornography. Action to criminalize such crimes must be taken to better protect the people of the United States from nonconsensual pornography. The creation of a federal nonconsensual pornography law would allow for all jurisdictions to follow and apply the law the same. A federal law would also allow the people of America to feel safer as their protection would be guaranteed, no matter where they are.
The creation of federal law would prohibit a narrowly defined form of intentional conduct that can occur on or offline. The prohibition of non-consensual pornography would be an addition to the list of federal criminal laws already established, including laws against child pornography, extortion, and identity theft, which online entities are not able to raise a special defense. Such a law would include a safe harbor provision similar to those used for child pornography and copyright violations and it would not affect the common defesnes any person, on or offline, could raise. A non-consensual porngraphy criminal law would regulate certain behaviors and does not raise more First Amendment issues than using it civially does. It would not be constituionlly permissible for a civil or criminal law to regulate the First Amendment if it protects a specific form of expression. It does not seem right for people to aruge that non-consensual pornography only be addressed civilly and should not be addressed criminally. Non-consensual pornography is above all a violation of privacy, among many other things. To best protect privacy criminal laws are used, which is why non-consensual pornography should be a criminal law. If criminal laws are used to protect unauthorized disclosures of private medical or financial information as well as laws against voyeurism, there is no reason non-consensual pornography should be a criminal law. Criminal laws that protect privacy can be compatible with the First Amendment, so criminal laws protecting sexual privacy can as well.
Usually, criminal laws principles require intent. Therefore, a person much intend, on some level, to commit a crime or unlawful act. In non-consenual pornography cases, the unlawful act would be the disclosure of private material without consent, that a person does intentionally to inflict harm. The “intent to harass” and “intent to cause distress” clauses are motive requirements, which criminal law principles generally do not require. (Criminal Law Class with Dr. Brady). The disclosure of private material without consent is the harm of privacy violations, not why the the offender chose to disclose the material. Intent to harass and distress provisions make a law both vulnerable and incoherent to constituional attack. These provsions would mean that intent must be proven beyond a reasonable doubt that the offenders motive was to harass or distress or it allows for people to distrubute private, intimate, sexually explicit material. Provisions such as these would make it legal to distribute material for any motive, including for entertainment, profit, or no reason at all. For example, revenge porn site operators would be free to continue destroying careers, lives, personal relationships, and reputations because they are motivated by a desire to make money and not by the desire to harass. People who distrbute private photos of celebrities would be allowed to do so without the fear of punishment because their intent was to provide entertainment. Lastly, rapists who distrubute recordings they made of their sexual encounters would be free to brag about their exploits.
In order to address any conduct that does not cross state lines or interstate commerce, state criminal laws are necessary. A federal law for non-consensual pornography is necessary because, unfortunately, state laws are limited by jurisdictions and by the Communications Decency Act Section 230. Section 230 creates high hurdles for either civil or criminal charges against website operators who host non-consensual pornography. Unfortunately, the internet has become the host of non-consensual pornography and has facilitated the production and distribution it, which would constitute interstate crimes. Therefore, federal criminal laws are the most appropriate and effective means of addressing these interstate crimes. The special immunity that Section 230 provides against state criminal laws and tort claims does not apply to violations of federal criminal law.
Nonconsensual pornography is a particularly severe and destructive invasion of privacy. The harm nonconsensual pornography causes, compared to many other types of conduct that is traditionally punished by criminal law, is far more severe, irremediable, and lasting. Every possible, and attainable, effort must be made to prevent it from occurring in the first place, given the immediate, devastating, and irreversible impact this type of conduct has. Criminal penalties for this harsh crime offers the most potential for deterrence, as well as imposing an appropriate punishment. Implementing such laws would promote the idea that men and women’s cannot and will not be used in a sexual context without their consent and that bodies are their own.
References
- An Act Relating to Criminal Offenses – Electronic Imaging Devices, RI. Assemb. 7452. (Feb. 2, 2018), Chapter 11-61 (RI. Stat. 2018). http://webserver.rilin.state.ri.us/BillText/BillText18/HouseText18/H7452A.pdf
- FL Stat § 784.049 (2016). https://law.justia.com/codes/florida/2016/title-xlvi/chapter-784/section-784.049/
- The Florida Senate. (2011). Chapter 836 Defamation; Libel; Threatening Letters and Similar Offenses. Retrieved from https://www.flsenate.gov/Laws/Statutes/2011/Chapter836/All
PowerPoints from class:
September 13, 2018. Privacy in the Digital Age.
September 27, 2018. Cyber Bullying, Harassment & Stalking.
October 18, 2018. Cyber Sexual Abuse Part 1.
October 25, 2018. Options for Victims of Non-Consensual Pornography, Cyberstalking, Online Sexual Abuse.
November 1, 2018. Responsibilities of Websites.