Kevin Bollaert and Craig Brittain: Two 'Revenge Porn' Cases, Two Very Different Outcomes

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This week, a San Diego County Superior Court found "revenge porn" proprietor Kevin Bollaert guilty of more than two dozen counts of identity theft and extortion. Though it's been widely portrayed as a win for California's new revenge-porn law, Bollaert, 28, was neither charged nor convicted under the law, which didn't take effect until October 2013, after his arrest.

Bollaert's crimes were related to UGotPosted.com, a website which encouraged men to submit sexually-explicit photos of ex-girlfriends. Bollaert posted the pics alongside personal information about the women and links to their social media profiles. Those who requested photos be removed were obliged—if they visited Bollaert's other site, ChangeMyReputation.com, and paid $299 to $350. It was a good, old-fashioned shakedown. And this is what Bollaert was prosecuted for, not running a site that hosted revenge porn, per se. The state's complaint against him focuses on his extorting money and "unlawfully obtaining" and posting personal information, not images.

Bollaert, who will be sentenced in April, now faces up to 20 years in prison. 

Craig Brittain's scheme seems to have been similar. He co-founded and ran IsAnybodyDown.com, which also hosted nude or sexually-oriented photos alongside personal information. Victims could visit a special site and pay a fee, ranging from $200 to $500, to be removed from IsAnybodyDown.com. Last week, Brittain reached an agreement with the Federal Trade Commission (FTC), in the FTC's first move against revenge porn. 

In the FTC's complaint against Brittain, it faulted him for "disseminat(ing) photographs of individuals with their intimate parts exposed, along with personal information of such individuals, though the Website for commercial gain and without the knowledge or consent of those depicted, when … the depicted person had a reasonable expectation that the image would not be disseminated through the Website for commercial gain" and the injury was not "outweighed by countervailing benefits to consumers or competition." It also objected to his soliciting photos of individuals "with their intimate parts exposed while representing, directly or indirectly…that he would use such photographs solely for his personal private use" but instead posting and profiting off of them. 

"The acts and practices of Respondent as alleged in this complaint constitute unfair or deceptive acts or practices in or affecting commerce in violation of Section 5(a) of the Federal Trade Commission Act," the FTC concluded. Under its agreement with Brittain, he is banned from publicly sharing nude photos or videos of people without their "affirmative express consent in writing" and must destroy all photos and info he obtained for IsAnybodyDown.com. He will also have to check in with the FTC about employment changes for the next 10 years, but he does not face further punishment or any fines unless he violates the FTC's consent order.

Earlier this year, Reason TV looked at whether and, if so, how revenge porn should be criminalized (see the video below). Much of the legislation states have proposed and passed so far creates First Amendment concerns, and has been opposed by groups such as the American Civil Liberties Union. One alternative, at least in cases where the explicit photos are "selfies," is to address the matter using copyright law. A new initiative, the Cyber Civil Rights Legal Project, has started filing federal copyright lawsuits on behalf of revenge-porn victims. The FTC's actions against Brittain suggest, for better or worse, another avenue this battle might take.

 

Comments

[Pl?ya Manhattan.]

Sounds like extortion to me

[Harold Falcon]

Well yeah, that's what Bollaert was convicted of.

[Quixote]

It's hard to see how laws forbidding revenge porn can present "First Amendment concerns," when even inappropriately deadpan email satire has been criminalized in New York, without presenting any First Amendment concerns at all. After all, criminal libel is still on the books in many American states, and does not appear to be opposed by the ACLU. See the documentation of America's leading criminal satire case at:

https://raphaelgolbtrial.wordpress.com/

[Pl?ya Manhattan.]

BTW, the original revenge porn guy, Hunter Moore of isanyoneup.com, was also arrested on fraud and hacking charges. He might possibly be the biggest douchebag in the world.

It turns out that most of the "revenge porn" on his site wasn't revenge porn at all. He hired a hacker to break into peoples' gmail accounts and steal their pictures. One of his victims waited outside his house and stabbed him in the shoulder.

[straffinrun]

Here, have some karma porn

[Harold Falcon]

That's not how Karma works.

[straffinrun]

ShadenfReid ok?

[sarcasmic]

I'd be happy to make some revenge porn with the chick in that photo. Hell yeah.

[Harold Falcon]

Hurtful. Reported to the Committee on Hurtful Comments.

[Crusty Juggler]

well, revenge porn makes me feel icky so of course it should be illegal.

[John]

This is just another example of how society lets its obsession with sex override its good sense. Suppose Elizabeth is at her b/f's wearing a Nickleback T-shirt and he takes a picture of her in it and then puts it up on instagram after they break up. This of course would cause Elizabeth a tremendous amount of shame and humiliation. No one, however, would argue his publishing the picture is a crime. Yet, somehow they think a sex tape is.

As long as a film or picture is taken with the consent of both parties, it belongs to the both the person taking it and the person in it. If women don't like their b/fs publishing naked pictures of them, stop letting them take them. Certainly, if someone takes a picture without someone's consent, that person should have a right to stop the other person from publishing it. With consent? Too bad.

You are responsible for your actions. Everyone knows that digital pictures never go away. If you don't like the idea of people seeing you naked, don't take pictures of yourself naked. It is that simple.

[Charles Easterly]

"Suppose Elizabeth is at her b/f's wearing a Nickleback T-shirt and he takes a picture of her in it and then puts it up on instagram after they break up. This of course would cause Elizabeth a tremendous amount of shame and humiliation. "

I don't know John, I just looked at Ms. Nolan-Brown's picture and it seems to me that she could only improve the appearance of the Nickleback T-Shirt.

[sarcasmic]

He's saying that it would be more embarrassing to be in a picture wearing a Nickleback T-Shirt than naked or having sex. Because Nickleback sucks. Ass.

[Charles Easterly]

I noticed that you used "picture" rather than "photograph" - is the antipathy that strong?

[John]

I was of course kidding. My point is better expressed below. The point is that there are a million ways to betray someone's trust and humiliate them. There isn't anything special about naked pictures and they shouldn't be treated any differently.

[sarcasmic]

It wasn't intentional.

[Charles Easterly]

"You are responsible for your actions. Everyone knows that digital pictures never go away. If you don't like the idea of people seeing you naked, don't take pictures of yourself naked."

While I agree with you here John, I also believe that one party's privacy is violated if the other party betrays the trust implied in the making of an intimate video.

I can see where a lot of us will be divided on this issue.

P.S. If you see a video of a man riding a unicylce wearing a top hat, monolce, and Seven Mary Three T-Shirt it is not me.

[John]

While I agree with you here John, I also believe that one party's privacy is violated if the other party betrays the trust implied in the making of an intimate video.

That means it is not a very nice thing to do, but neither are a lot of things. Suppose that her boyfriend confides in Elizabeth that he enjoys wearing women's clothes at home. Then after they break up Elizabeth blogs about it and ensures that her ex's friends and family know about his kink. That would be a pretty big betrayal of trust and a violation of his privacy wouldn't it?

That seems a hell of a lot worse than his publishing a topless picture of her. In that case, she would rightly be seen as a victim. In my example, her boyfriend would be the subject of endless scorn and derision thanks to her betrayal. Yet, these laws make publishing the topless picture a crime while other and much more damaging betrayals of trust and invasion of privacy are perfectly legal.

The point is that there is no way to criminalize betrayals of trust and invasions of privacy like this in any fair way. Neither act should be criminal or within the purview of the law. The only reason publishing the topless picture is is because the law views women as deserving of special protection and men as deserving of less than equal rights.

[Charles Easterly]

Good points John.

We do have laws dealing with slander, libel, et cetera (none of which I am familiar with).
Perhaps there is an application among one or more of them for "internet revenge".

[John]

Libel and slander are untrue. If Elizabeth lied about her ex liking women's clothes or he photoshopped Elizabeth's face on another woman's topless body, that would be libel. If, however, the photo and the statement are real, it is not libel. It is simply a nasty betrayal of trust.

At most these kinds of things are an intentional infliction of emotional distress. That is where the revenge porn cases belong. If a woman can prove she really did suffer severe emotional distress because her asshole b/f published a sex tape they made without her consent, she has a cause of action against him. What he did, however, should not be a crime.

[Charles Easterly]

My unfamiliarity with the correct terms has obviously harmed my overall point. I should have taken the time to do a little research:

"Publication of Private Facts: The legal claim known as "publication of private facts" is a species of invasion of privacy. You commit this kind of invasion of privacy by publishing private facts about an individual, the publication of which would be offensive to a reasonable person. This legal claim can only be successful, however, if the facts in question are not legitimately newsworthy. So, for instance, if you disclose the fact that your neighbor has an embarrassing health condition, you might be liable for publication of private facts. If, however, this medical condition is particularly relevant to some topic of public interest -- say, your neighbor's fitness to serve in public office, a court might find that your publication is lawful. Determining what facts are of legitimate public concern is often difficult to determine, so you may want to get permission before disclosing potentially embarrassing information about an individual you interview or write about....

[Charles Easterly]

And:

"Elements of a Private Facts Claim.

A plaintiff must establish four elements to hold someone liable for publication of private facts:
1. Public Disclosure: The disclosure of facts must be public. Another way of saying this is that the defendant must "give publicity" to the fact or facts in question.
2. Private Fact: The fact or facts disclosed must be private, and not generally known.
3. Offensive to a Reasonable Person: Publication of the private facts in question must be offensive to a reasonable person of ordinary sensibilities.
4. Not Newsworthy: The facts disclosed must not be newsworthy. Stated differently, the facts disclosed must not be a matter of legitimate public concern."

http://www.dmlp.org/legal-guid.....nformation

Any thoughts?

[John]

I honestly have never heard of that tort. It would seem to cover revenge porn and the other examples I give.

The bottom line is that these kinds of disputes belong in civil court and should be treated like the torts they are not crimes.

[Charles Easterly]

"The bottom line is that these kinds of disputes belong in civil court and should be treated like the torts they are not crimes."

This is one of the first things I noticed when I started looking for actual laws which were appropriate to my general idea of how these situations might be adjudicated.

I learned a little today, although I'm still out of my element: https://www.youtube.com/watch?v=ks072waMayk

[Bill Dalasio]

While I agree with you here John, I also believe that one party's privacy is violated if the other party betrays the trust implied in the making of an intimate video.

Well, assuming the video was made with the knowledge of both parties, I think it's reasonable to assume that it was a gift to whoever kept the video.

[John]

The other thing of course is there is nothing special about photos. Which would be more damaging, if an ex b/f published a picture of a woman nude or wrote a very public and graphically detailed blog post about some of center sex act she and he performed once? I would think the latter. Yet under these laws it is perfectly legal and the nude picture is a crime.

[CN_Foundation]

18 U.S. Code ? 1462 - Importation or transportation of obscene matters

Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or interactive computer service (as defined in section 230(e)(2) [1] of the Communications Act of 1934), for carriage in interstate or foreign commerce?
(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or ....
======== =========== ========= ========= ========= ======= =======
Has been a federal crime since 1934 but this common carrier was called some mysterious "[holy] new medium in 1997" and became unregulated due to the
Reno v ACLU factual SCOTUS error.
Neeley v 5 Federal Communications Commissioners, et al, (14-3447)
Motion for Summary Judgment IFP HTML
Brief Supporting Motion for Summary Judgment IFP HTML

[SFC B]

But doesn't that rely on meeting a very difficult-to-meet standard of "obscene"? Just being pictures of naked people doing things naked people do doesn't make it obscene, but it requires the movies or images to be some horrifying content?

[BillyBerg]

I think revenge porn sites are generally a bad thing, but there should be made a difference between the real revenge porn sites and the fake ones that run with paid legal content and only market themselves as exgf sites.