In the wake of the nude-picture-hacking scandal involving images of Jennifer Lawrence, Kate Upton, and dozens of other mostly (but not exclusively) female celebrities, calls to shut down or legally punish the sites at which they were posted—such as Reddit and 4chan—are flying fast and furious. So are calls to increase the scope and penalties for “involuntary porn” and “revenge porn,” in which intimate photos and videos are shared without the consent of all involved parties.
Such reactions are as understandable as they are ultimately misguided. There’s something deeply disturbing about people’s most intimate information being hacked and distributed across the globe. But most remedies threaten not bad behavior as much as the very openness of expression the Internet makes possible.
It’s already a criminal act to hack into private online accounts, so it’s not exactly clear how new laws will change bad actors’ behavior. Under the best of circumstances, it’s notoriously difficult to prove exactly who uploaded what where, and the types of people who are likely commit such acts tend to have an overriding disregard not just for common decency but legal sanctions. Indeed, the hacker believed to be responsible for the posting of the celebrity nudes is reportedly both on the run from the FBI and still threatening to release yet more photos. Similarly, attempts to shut down the so-called Darknet, on which illegal drugs and other illicit goods and services are traded, have proven ineffective. Last year, federal agents arrested the alleged mastermind of the biggest such site, Silk Road, only to see Darknet activity increase by nearly 60% or more since then.
Under current federal law, Internet Service Providers (ISPs) and websites enjoy broad legal immunity from the actions of people who use online services. That’s as it should be and the main reason the Internet evolved into the greatest free-speech forum ever imagined. Yet recent laws designed to criminalize revenge porn effectively nullify such protections.
Earlier this year, for instance, Virginia passed a law that makes it illegal for “any person…with the intent to coerce, harass, or intimidate” to “disseminate or sell” images of someone “in a state of undress” where “such person knows or has reason to know that he is not licensed or authorized” to disseminate. Violations are Class 1 misdemeanors and carry monetary fines and up to a year in prison. The first case brought under the new law was filed in July and the defendant is currently out on bond. Members of Congress such as Rep. Jackie Speier (D-Calif.) are pushing federal versions of such laws, which would strip ISPs and websites of their immunity.
The problem with such legislation is that it doesn’t just criminalize the posting of images whose meanings and intentions are rarely as clear-cut as prosecutors want to believe. It also has the potential to massively chill free speech by gulling ISPs and websites into either pulling down totally legal material when faced with any sort of complaint, but also proactively policing free expression. Individuals, too, will also feel the chill as they wonder exactly what sort of material may land them in court.
As Lee Rowland of the ACLU told one of my colleagues at Reason TV earlier this year, “Criminal law is such a blunt instrument that we have real doubts that it’s possible to draft these laws in a way that won’t end up criminalizing pure speech.”
It’s only been little more than a year that revelations from Edward Snowden detailed just how much of all of our on- and off-line communications are being monitored by any number of government agencies and programs. While the Internet has exponentially increased the possibilities of human rudeness, crudeness and rotten behavior, it has also similarly exploded our ability to communicate openly and to speak truth to power—even as that power is trying harder than ever to keep track of every random thought we have.
The celebrities affected by this latest online scandal will survive with their careers intact. They have every right to be aggrieved and to pursue legal claims that exist against hacking and invasion of privacy. But all of us deserve a free and open Internet, too. Anything we do to tamp down the free flow of information on the Internet will ultimately come at a price that is steeper than advertised.
Nick Gillespie is the editor in chief of Reason.com and Reason.tv and the co-author with Matt Welch of The Declaration of Independents: How Libertarian Politics Can Fix What’s Wrong with America.
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