Making money by exposing the private, nude images of strangers may be sleazy, but is it illegal?
That's the question facing Kevin Bollaert, a San Diego man who ran what's called a revenge porn website. He was arrested last week and is scheduled to appear in court Tuesday. In the court papers filed against him, the 27-year-old is quoted as saying, "I know a lot of people are getting screwed over like on the site. Like their lives are getting ruined."
But legal scholars say the charges he's facing may not fit the crime. And California's new law against revenge porn doesn't even apply in his case, which demonstrates just how tricky it is to outlaw bad behavior online.
The site ugotposted.com hosted more than 10,000 intimate photos uploaded to the web without the consent of the women pictured. Their names and Facebook profiles were attached to the photos. To get the photos scrubbed from the web, victims had to pay up to $350 through another website allegedly owned and operated by Bollaert.
Victims of revenge porn often report being harassed. Some have lost jobs and had to change their names after their online reputations were ruined.
Bollaert is the first revenge porn purveyor facing criminal charges due to his online activity. He's scheduled to appear in court Tuesday, where he'll be arraigned on 31 felony counts, most of them for identity theft.
If identity theft sounds like a strange charge to you, you're in good company. Even legal experts on revenge porn were surprised to see Bollaert charged with that, of all things.
"I don't think it makes any sense, identity theft," said Danielle Citron, a law professor at the University of Maryland who's currently working on a book about online hate crimes. "The site operator isn't pretending to be the subjects of the pictures and then passing himself off as those individuals."
She says the California Attorney General had to get creative to arrest Bollaert. Even though California passed a law criminalizing revenge porn earlier this year, it can't be used against people like Bollaert.
"It's not designed to apply to a site operator," Citron explained. "At least not in the way it's crafted."
She says the law doesn't apply at all to the majority of revenge porn.
"The California statute basically reaches such a small pocket of victims, it's just essentially irrelevant, unfortunately," she said.
That's why Citron has been advocating alongside revenge porn victims for stronger legislation in other states. She looks at Kevin Bollaert's case and sees that prosecutors need new laws to really crack down on revenge porn.
Other legal scholars look at the same case and think prosecutors maybe should've left Bollaert alone.
"We should be a little bit more nervous when we see our prosecutors trying to stretch the law to fit the facts," said Eric Goldman, a professor at the Santa Clara University School of Law.
Goldman wants to make it clear that he's not defending revenge porn.
"So much of the visceral reaction people have to this revenge porn operation is, 'that's disgusting!' And I'm not going to argue about that at all," he said.
But Goldman urges caution when it comes to distinguishing repugnant behavior from actual crimes.
"Let's start with the premise that it's not a crime to be despicable," he proposed. "There are crimes on the books and we need to find the crimes that apply to the facts. If we can't do that, we may have a hole in the law, but we don't have criminal behavior."
Goldman would be very wary of any new laws aiming to put revenge porn peddlers behind bars. He's glad our legal system provides a lot of immunity for people who run websites where users upload their own content. He says without such protections, many of the sites we use every day—from Youtube to Craigslist to Facebook—just wouldn't exist.
"That law has been the foundation of the entire user-generated content industry," Goldman said. "It's why we have some of the services we love and cherish on the Internet."
The California Attorney General's office wouldn't comment on Bollaert's case, which it's currently prosecuting.
For now, anti-revenge porn activists are focussing on legislation in other states. Citron is currently helping to craft a law in her own state of Maryland.
"I'm calling for us to see it as a problem," she said. "In the way that we didn't see domestic violence and sexual harassment as a problem until the women's movement sort of made us see it as a serious social problem. I think we're in some sense replaying history."
Citron hopes a Maryland statute would patch up the holes left in California's law, and Goldman hopes any new laws that do end up passing won't stifle legitimate online speech in the process.
