A New Strategy for Prosecuting Revenge Porn

California's attorney general avoids the state's revenge-porn law in a new indictment

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California Attorney General Kamala Harris speaks at a news conference on May 17, 2013. On Dec. 10, she charge the operator of a revenge porn website with identity theft and extortion.

Lawmakers across the U.S. are talking about porn. In particular, they’re considering whether to outlaw revenge porn, shorthand for sexually explicit images that someone posts without the consent of the subject — like when a bitter ex posts what were thought to be private pictures on the Web to get back at a former lover. As legislators debate ways to crack down on the practice, California’s attorney general on Tuesday tried a less direct tack, charging a 27-year-old man with identity theft and extortion for allegedly running a revenge-porn website.

“This website published intimate photos of unsuspecting victims,” Kamala Harris, the attorney general, said in a statement, “and turned their public humiliation and betrayal into a commodity with the potential to devastate lives.”

A San Diego man named Kevin Christopher Bollaert allegedly ran a now defunct site called ugotposted.com, which featured more than 10,000 explicit photos posted without permission of the subjects. The site was set up not just to house pictures but also information about the subjects; according to a press release from Harris’ office, each photo was accompanied by a link to a Facebook profile. Court documents also allege that Bollaert ran a separate site called changeyourreputation.com, also since taken down, which offered to get such photos scrubbed from the Web for about $300. It’s not uncommon to find “reputation-protection services” offered alongside such humiliating galleries. For that, the state is charging him with extortion.

The mostly female victims of the postings say they were hounded by messages and phone calls after the photos went up from people who used the corresponding Facebook profiles to find contact information. One Jane Doe cited in court documents wrote an e-mail to the site administrator saying that after the photos were posted, she was “scared for my life! People are calling my work place and they obtained the information from this site! … I have contacted the police but these pictures need to come down! Please!” The photos were not removed.

Such details will likely be key to making the charges stick. In California, identity theft is defined as taking someone’s personal information with the intent to do something unlawful with it. In this case, Harris is arguing that Bollaert’s unlawful intention was harassment — as evinced by all the identifying information the website required. This legal tack raises questions about whether identity theft can be a passive offense against a general population, rather than a tailored act focusing on an individual.

Harris’ roundabout approach may become ammunition for advocates who want more and stronger laws against revenge porn. While California Governor Jerry Brown signed a bill in October that allows people who post revenge porn online to face jail time, the law says nothing about website operators, who generally aren’t liable for content that other people put on their sites.

Along with New Jersey, California is one of just two states with revenge-porn laws on the books. Lawmakers in Florida, Maryland, Wisconsin and New York have been considering whether to make it illegal to post sexually explicit photos on the Web without a person’s permission. While the issue may sound like a no-brainer, it can quickly become a complicated argument about copyright, free speech and privacy.

A spokesman for Harris says this case is a simple one about landing “a big fish, not all the little fish” when it comes to revenge porn.

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