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Nieman Journalism Lab
Pushing to the future of journalism — A project of the Nieman Foundation at Harvard

At Gawker, Michelle Dean has a piece on revenge porn — the awful practice of jilted men (mostly) posting explicit videos and pictures from their exes online — and the legal backlash building against it. There are bills pending in at least 24 states to ban or otherwise limit revenge porn, and a federal bill is coming.

We’ve written before about a similar issue — those skeezy mugshot sites that post pics from public records and then offer to take them down for a price.

To state the obvious, most online publishers are in neither the mugshot extortion business nor the revenge porn game. But even the most legitimate publishers should be watching this space because, in both cases, changing Section 230 of the Communications Decency Act is one of the ideas being tossed around. Section 230, as this old Nieman Lab video will tell you, is the part of U.S. law that says (in nearly all cases! I am not a lawyer!) that websites aren’t held responsible for what’s posted by their users. If one of your readers falsely calls his neighbor a child molestor in the comments section of your news site, that reader might well be guilty of libel — but your site isn’t. In a very real sense, it’s the law that allows the Internet as we know it to exist; imagine if sites had to preclear all user contributions everywhere, whether on a blogging platform, on Twitter, or elsewhere.

As Mary Anne Franks, a University of Miami law professor working on the federal revenge porn bill, tells Gawker:

…online entities protected by Section 230 of the Communications Decency Act are provided with a special defense against state criminal laws, but not against federal criminal laws (or federal copyright laws, for that matter). A federal law means that a revenge porn site claiming to merely provide a platform for angry exes to upload sexually explicit images of their former partners will not be able to hide behind Section 230.

And as Gawker commenter dontshootme responds:

I think the EFF’s concerns [about amending 230] are being under valued here. The likelihood of overreach is very large, in my opinion. Also, it strikes me as being very dangerous to start messing with Section 230. I get that this is a very real problem, I just suggest a knee-jerk reaction by lawmakers (which is what almost always happens with public outcry type stuff) will result in bad law…

Maybe it’s just me, but I seem to see a lot of talk about how “bad” section 230 is (not in this article) so when I see issues like this, I get concerned that a law will be created that generates an exception. I believe we should go after the ones who upload. [Revenge porn king] Hunter Moore’s situation is fairly straightforward, but what about sites that link to it? Are they responsible? How about if I linked to it here in the comments, is Gawker responsible? Right now, no. If we weaken 230 then censorship gets easier and easier.

Here’s an overview of the issue from the pro-legislation side.

— Joshua Benton
                                   
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When journalists factcheck politicians (or don’t), how to flag bad behavior on social media, and getting past slactivism: all that and more in this month’s roundup of the academic literature.
  • gregpiper

    This article ends abruptly – is the end missing?

  • http://www.niemanlab.org/ Joshua Benton

    Nope.

  • BettorOffSingle .

    Fifteen years ago, I exposed a major case of child abuse in gymnastics. From the time I exposed it, to the time the girl confirmed it, her abusers and enablers lied about me that I was a pedophile seeking an excuse to involve myself with “underaged gymnasts.” When the girl confirmed the abuse, that should have been the end of it, and in the gymnsatics world, it pretty much was, but thanks to Section 230, the “scarlett letter” has followed me around the internet ever since, with everyone linking to the original defamation — the claims, plus a story authored by an imposter which claimed I wanted to rape and murder young gymnasts — and with me defenseless becuase of Section 230.

    Soon after, a rival dating-advice expert’s “fan” began republishing the defamation, with anyone with an axe to grind against me quoting the hate-websites that contained these allegations, all made possible by Section 230. The ringleader was a man named Derek “Odious” Trunk, a lesser-known friend of future world-famous “pickiup artists.” Trunk made it his mission to warn the world of my alleged pedophilia, and those who didn’t like me, my politics, or my whistleblowing against child abuse and other true evil, had a license to demolish my reputation while hiding behind Section 230. On any mesage board, within a few posts, someone would link to the lies, totally immune from lawsuits, while I was totally defenseless agianst the lies. Trunk was sought out as a “protector” of sorts by concerned adults whose concern was a consequence of his lies.

    A few months ago, some “leading revenge porn activists” also linked to the lies, including the imposter rape/murder story, and particularly the lies publicized by Derek Trunk, whose name turned up perfectly clean on Google searches, while my name wsa destroyed to the point where employers, friends, relatives, lovers, and anyone of consequence would repeat the lies, believe them, and strangers would even turn vigilante and make threats, all based on these lies. Trunk basked in his credibility, accepting praise for “warning” the public, a public that cared nothing about truth or my reputation. I was told to “just turn off your computer,” but how do we turn off others’ computers? No one would be lied about like this.

    The same revenge-porn activists who so eloquently speak out against cyberbullying, and who have embraced the hacker group Anonymous as allies, were linking to republications of the lies posted by an Anonymous splinter group, who did so in a way that makes them impossible to sue, again because of Secgtion 230. The same people who decry revenge-porn sites hiding behind 230 were now hiding behind it themselves.

    A few weeks ago, out of curiosity, I Googled Derek Trunk’s name just to see what had become of him, and learned that in 2012, he was arrested for possession of child pornography, a total of 600 videos and images, including that of a seven year-old girl being tortured and raped while she cried out. Google of course didnt update its search results on me, because it has no reason to, and the “salami slicing” of a hundred enemies dividing up their behavior in a manner that cloaks individual involvement, make it impossible to, and they claim the same 230 immunity.

    The same “revenge porn” activists who claim to want to protect women and children were indirectly enabling a child-porn distributor by lending credence to his false criminal imputations concerning me, and they did so unapologetically, more gleeful at being able to silence me than concerned that perhaps they were spreading lies and bolstering the reputation of the true threats to children.

    Thanks to Trunk’s hate campaign, my reputation has been permanently destroyed, with a harm that dwarfs any experienced by those who voluntarily shared their images and videos, and with help from those who claim to wnat to protect individuals from having their lives destroyed. Without Section 230, Trunk would have been exposed long ago, and my reputation would still be intact. Now allegedly “good people” are more concerned with currying favor with pretty women who engag4e in amateur porn than with clearing the name of a an with not so much as an arrest for anything, whose name has been tarnished by these lies.

    This is what Section 230 yields. Most reading this will not care about my story until they are targeted, and if they think they won’t be targeted, they are wrong. Eastern Europeans in poor countries have learned about 230, and now engage in “reputation blackmail” where they demnand $500-1,000 in “protection money” against their google-bombing wealthy, defenseless Americans. Anyone who supports Section 230 is culpable, with my blood, and the blood of that seven year-old girl who was tortured and raped, squarely on their hands. I hope they are proud of themselves and their ignorance, for if they were trying to harm me and others similarly situated, they could not have done a better job.

    Ray Gordon
    NOT a pedophile

    The case is USA v. Trunk:

    UNITED STATES DISTRICT COURT
    SOUTHERN DISTRICT OF CALIFORNIA

    UNITED STATES OF AMERICA,

    Plaintiff
    v.

    DEREK HOWARD TRUNK,

    Defendant :
    :
    :
    :
    :
    :
    :
    :
    :
    :
    : MAGISTRATE CASE No.: 3:12-CR-00753-LAB

    COMPLAINT FOR VIOLATION OF

    Title 18, U.S.C. §2252(a)(2) – Distribution of images of Minors Engaged In Sexually Explicit Conduct, Title 18, U.S.C. §2252(a)(4) B) – Possession of Images of Minors Engaged in Sexually Explicit Conduct

    The undersigned Complainant, being duly sworn, states:

    Count One

    On or about March 9, 2011, within the Southern District of California, Defendant Derek TRUNK did knowinigly distribute visual depictions, that is digital and computer images, using any means and facility of interstate foreign commerce and that has been mailed, shipped, and transported in and affecting interstate and foreign commerce, and which contains materials which have been mailed, shipped and transported in interstate and foreign commerce, by any means including by computer, the production of which involved the use of a minor engaging in sexually explicit conduct, as defined in Title 18, United States Code, Section 2256(2), and which visual depictions were of such conduct in violation of Title 18, United States Code, Section 2252(a)(2).
    Count Two
    On or about July 15, 2011, within the Southern District of California, defendant Derek TRUNK, did knowingly possess one or more matters, that is, computer hard drive(s) and computer media containing digital and computer images that had been mailed, shipped, and transported using any means or facility of interstate and foreign commerce, in and effecting interstate and foreign commerce, and which were produced using materials which have been mailed, shipped, and transported in interstate and foreign commerce, by any means including by computer, the production of which involved the use of a minor engaging in sexually explicit conduct, as defined in Title 18, U.S.C., Section 2256(2), and which visual depictions were of such conduct; in violation of Title 18, U.S.C., Section 2252(a)(4)(B).
    And the Complainant states that this complaint is based on the attached Statement of Facts, incorporated herein by reference.

    Sworn to me and subscribed in my presence this 31st day of January, 2011.

    STATEMENT OF FACTS
    I am a Special Agent (SA) with U.S. Immigrations and Customs Enforcement (ICE), Homeland Security Investigations (HIS), having been so employed for approximately ten (10) years. I am currently assigned to the Cyber Crimes group within the ICE Office of Investigations in San Diego, California. In addition, I am assigned to the Internet Crimes Against Childre (ICAC) task force in San Diego, CA. This complaint is based on my own investigation as well as information received from fellow ICE agents and other law enforcement officers.
    On March 9, 2011, Colorado (CO) Springs Police Department Detective Clayton Blackwell downloaded an image file over a file-sharing program from a computer utilizing IP address 72.207.94.245, which was later identified as belonging to an address where Derek TRUNK resided. The file, entitled “little hottie (20) (2) (1).jpg,” depicts a pubescent girl, approximately twelve to thirteen years of age, who is performing oral sex on an adult male.
    On July 15, 2011, at approximately 8:20 a.m., ICE and San Diego ICAC agents executed a court-authorized federal search warrant at 3403 42nd Street, San Diego, California (CA) 92105, the home of Derek TRUNK. A search of the residence resulted in the discovery and seizure of two (2) desktop computers, two (2) home computers, one (1) external hard drive, three (3) thumb drives, and one compact flash memory card. The computes, drives, and memory card were seized and prepared for examination by ICE Computer Forensics Agents (CFA),
    Forensic reviews revealed approximately 584 images and 42 videos depicting the sexual exploitation of children and one (1) computer and two (2) thumb drives seized from the residence. The following descriptions are samples of videos saved on a thumb drive that was discovered inside TRUNK’S bedroom:
    1. Name: (Pthe) Tara Brand New
    File Ext: AVI
    File Type: Audio Video Interleave File Multimediavideo
    Full Path: [root]/hard/vids/(Pthe) Tara Brand New.AVI

    The file is a video, approximately seventeen minutes and forty-one seconds in length that begins with the text “Tara 8yo Anal Collection.” During the video, an adult male is observed several times performing anal sex on a prepubescent girl who is approximately six (6) to nine (9) years of age. In addition, within the video, the adult male inserts phallic devices in the girl’s anus and directs her to perform oral sex on him. At the end of the video, the male straddles the girl and masturbates semen into her mouth, which he directs her to swallow.

    2. Name: chinese_torture (13yr child rape and crying).wmv
    File Ext: WMV
    File Type: Windows Media Video
    Full Path: [root]/download/chinese_torture (13yr child rape and crying).wmv

    The file is a video, approximately two (2) minutes in length, which begins by displaying a nude prepubescent girl, approximately twelve to fourteen years of age, who is lying on her back with her legs restrained by leather and chain shackles. During the video, two (2) partially nude males which includes one (1) who is wearing a hockey mask touch the girl’s genitals as she struggles, winces and cries throughout the video. Toward the end of the video, one (1) of the males rubs what appears to be a lubricant on and attempts to insert a phallic device into the girl’s genitals.

    3. Name: 7yo miniskirt spread fuck.avi
    File Ext.: AVI
    File Type: Audio Video Interleave File Multimedia/video
    Full Path: [root]/download/7yo miniskirt spread fuck.avi

    The file is a video, approximately two (2) minutes and forty-three seconds in length, which begins by focusing on the genitalia of a prepubescent girl, approximately six (6) to eight (8) years of age, with a blue jean skirt on that is pulled up to her waist and a shirt. For the entire length of the video, the camera is focused on the genitalia of the girl as an adult male has vaginal intercourse with her from various positions.

    In addition, the aforementioned image, downloaded by Detective Blackwell from TRUNK on March 9, 2011, was found on one (1) of his thumb drives.

    TRUNK was present at his residence at the time of the search warrant and agreed to speak voluntarily with ICE and ICAC agents. TRUNK provided the following information in summary. TRUNK admitted to possessing child pornography which he said would be found on his computer, external hard drive and thumb drive in the residence. He also advised that he utilized peer-to-peer file-sharing programs to download child pornography from the internet. In addition, TRUNK advised that although he did not consider himself a distribution hub, he probably used a peer-to-peer file-sharing program to share child pornography with others online.
    REQUEST FOR SEALING
    It is further respectfully requested that this court issue an Order sealing, until further order of this Court, all papers submitted in support of this complaint, including the probable cause statement and arrest warrant. Sealing is necessary because premature disclosure of the contents of this probable cause statement and related documents may cause the defendant to flee and may cause destruction of evidence and may have a negative impact of this continuing investigation.

    Holly S Hanover
    Law Offices of Holly S Hanover
    1016 La Mesa Avenue
    Spring Valley, CA 91977
    (619)295-1264
    hollyhanover@gmail.com
    Assigned: 02/03/2012
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED representing Derek Howard Trunk (1)
    TERMINATED: 08/10/2012
    (Defendant)

    Alessandra P Serano
    U S Attorneys Office Southern District of California
    Criminal Division
    880 Front Street
    Room 6293
    San Diego, CA 92101
    (619)546-8104
    (619)546-0543 (fax)
    Alessandra.P.Serano@usdoj.gov
    Assigned: 03/02/2012
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED representing USA
    (Plaintiff)
    U S Attorney CR
    U S Attorneys Office Southern District of California
    Criminal Division
    880 Front Street
    Room 6293
    San Diego, CA 92101
    (619)557-5610
    (619)557-5917 (fax)
    Efile.dkt.gc2@usdoj.gov
    Assigned: 03/01/2012
    TERMINATED: 03/02/2012
    LEAD ATTORNEY
    ATTORNEY TO BE NOTICED

  • BettorOffSingle .

    Section 230 will fall when someone argues a constitutional “right to reputation.” In Paul v. Davis (1976), the Supreme Court came within a hair of establishing this right. In that case, a police officer had issued a “warning flyer” about individuals arrested for burglary, without noting that the man had been acquitted. He claimed a “color of law” constitutional violation, and the court was split 5-4 on whether or not harm to reputation was harm to one’s constitutional right.
    In this case, the court held that a “secondary harm ” to a constitutional right, or property, must be inferred from the libel, and that this case did not rise to it because it involved only a few stores. The constitutional harm would be very easy to prove now, in the age where employers google people, and one cannot travel the highways (a constitutional right) without the defamation appearing on the cellphones of those they encounter, including laqw enforcement.
    With a constitutional right to reputation established, Section 230 falls. Such a right already exists in Europe and Canada, and search engines hvae lost large lawsuits brought by individuals becuase there is no Section 230 protection in the UK and Australia. The US is out of step wit the rest of the world on this issue, and the damage is horrific. Those who have yet to be impacted are smug and do not care about those who are harmed, while those who are harmed have to avoid situations where they might be googled and lied about, including their participation on message boards.
    The revenge-porn activists have oddly given search engines a pass on this, even though the search engines are the primary director of traffic to these sites, when people are searched by name. What they should do is pressure the advertisers who buy space on these search engines to tell the search egines they won’t advertise there unless this stops, with people telling the advertisers they won’t buy their stuff if they don’t join the cause. A website may be able to hide behind 230, but it cannot make people buy the stuff they advertise. Take away their incentive to spread hate, and spreading hate will stop.
    Gordon Roy Parker
    a/k/a Ray Gordon
    NOT a pedophile (Derek Trunk, who lied about me, is a convicted child porn distributor)
    Author, “Trial By Google: May I Please Have My Reputation Back?”