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How To Prosecute A Revenge Porn Profiteer?

Aired 12/17/13 on KPBS News.

Making money by exposing the private, nude images of strangers may be sleazy, but is it illegal?

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.

Comments

Avatar for user 'dialyn'

dialyn | December 17, 2013 at 8:59 a.m. ― 11 months, 2 weeks ago

It drives me a little crazy that the protection of free speech means that women's reputations can be ruined so some anonymous individual can do vicious things to her and laugh all the way. Would the defenders of these people be so indulgent if it were their daughters whose heads were put on naked bodies so that some creep could get their jollies? And then the guy gets to extort money out of the women when they are desperately trying to get rid of the photographs....what theory protects him when it is his site that allows the photos to be spread through out the Internet and he has no ability to assure the women they have real protection. We pretend to be civilized, but, as long as women are considered fair game for violence and degradation, we aren't there.

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Avatar for user 'JeanMarc'

JeanMarc | December 17, 2013 at 9:17 a.m. ― 11 months, 2 weeks ago

Would you prefer not to have protected free speech?

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Avatar for user 'dialyn'

dialyn | December 17, 2013 at 9:21 a.m. ― 11 months, 2 weeks ago

Frankly, when free speech involves bullying and degrading other people, I am all for restricting it. Just because you can say a vile thing doesn't mean that it is just that you be rewarded for it. Yes, the women who take photos of themselves and send them around are not the brightest lot in the world, but does that mean they should lose their jobs and reputations because a low form of life takes advantage of them? And what about those people who manipulate the photos so it's not the woman at all but just her face...she gets to lose her job because some jerk waves the first amendment in the air? How is that justice?

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Avatar for user 'JeanMarc'

JeanMarc | December 17, 2013 at 9:59 a.m. ― 11 months, 2 weeks ago

So what other parts of the constitution do you think it would be ok to disregard?

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Avatar for user 'benz72'

benz72 | December 17, 2013 at 12:22 p.m. ― 11 months, 2 weeks ago

If it really isn't them, aren't there already protections against libel?

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Avatar for user 'JeanMarc'

JeanMarc | December 17, 2013 at 2:08 p.m. ― 11 months, 1 week ago

Isn't the person who created this site in jail right now? I don't see how the current laws are inadequate.

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Avatar for user 'LBrixey'

LBrixey | December 18, 2013 at 6:55 a.m. ― 11 months, 1 week ago

From the article: "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.'"

The technology has changed but the underlying problem has not. Who even goes to visit such a website, and then harasses these women? Never mind post a photo, knowing she will be harangued. Those who have such severe shame issues that they need to shame others, I guess. That is the real issue that needs to be addressed. Why do these young men have such shame issues in this day and age? Very sad. We still need to make a lot of progress in the area of sexuality.

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Avatar for user 'LBrixey'

LBrixey | December 18, 2013 at 7:04 a.m. ― 11 months, 1 week ago

I do agree that it is not identity theft. But it is libel if someone manipulates the photo so that it is only the woman's face and not her body. As far as women losing their jobs and "reputations": whoever is visiting such a site is of questionable moral fiber; they have a reputation, and a job, to lose, as well.

By the way, according to another news source, he is also being charged with extortion. Rightly so. He had quite a racket going: charge the guy to post the photo; charge the victim to remove it. Guess he didn't need a legitimate job.

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Avatar for user 'LBrixey'

LBrixey | December 18, 2013 at 7:14 a.m. ― 11 months, 1 week ago

Okay, last post. Can they get this guy for running a porn site? There are a lot of rules and regulations operators have to abide by, including obtaining the consent of the models and verifying that they are even of the age of consent. I think this guy has gotten himself into quite a pickle, as my grandmother would say. I think there are already laws on the books that pertain to his shenanigans.

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Avatar for user 'JeanMarc'

JeanMarc | December 18, 2013 at 9:05 a.m. ― 11 months, 1 week ago

Why did these girls allow someone to record them nude in the first place?

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Avatar for user 'melony111'

melony111 | January 9, 2014 at 8:02 p.m. ― 10 months, 2 weeks ago

He steals the pictures from hacking into personal facebook accounts and stalking women. Do you think that many people would post revenge pictures, no. He stole them, and mine and many others. He is an online hacker and stalker. Yes, impersonating us on his site, he is no victim, he is a cruel and vicious predator of women. He did this to his girlfriend years ago, its in court records, impersonating her. I hope they nail him.

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Avatar for user 'melony111'

melony111 | January 9, 2014 at 8:05 p.m. ― 10 months, 2 weeks ago

its total identity theft when he posts your full name and city and address on his site with the pictures he steals out of your password protected site, when he impersonates you after he posts you and you find it , weeks later, if this isn't identity theft what is. Its cruel, vicious, and should be charged as a sexual offense. It feels like rape.

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Avatar for user 'melony111'

melony111 | January 9, 2014 at 8:07 p.m. ― 10 months, 2 weeks ago

yes extortion...when he charges you hundreds to take down the pictures he stole from you that you made for your husband only. yes, its extortion and criminal.

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Avatar for user 'Peking_Duck_SD'

Peking_Duck_SD | January 10, 2014 at 9:04 a.m. ― 10 months, 2 weeks ago

Seeing people nude was common in some ancient societies where there was no embarrassment by it.

Then civilizations formed that decided nudity was going to be something private and, as seen with some cultures like the prudish Victorian era, even something to be embarrassed about.

Fast forward to today where a technology has manifested and is making it much harder to maintain the privacy societies have spent thousands of years trying to establish.

I'm not talking about just nudity of course, but everything.

There's cray-crays on FB who post what they consume for every meal and even when they go to the toilet.

For better or for worse, privacy as we know it has changed and will continue to do so. I would be willing to bet that in 100 years from now things that people are so in a tizzy about being exposed today will be commonplace and not even garner a reaction then.

With that said, we are in the present and people's lives can be damaged by some of these exposures.

Laws need to exist, but they need to be reasonable.

If a girl (or guy) decides to take a nude selfie of themselves and send it to someone and it ends up on the internet, well I'm afraid that's the risk you take. Yes the world can google your penis or vagina, get over it. We are all human, we all have bodies, and with billions of people on the planet trust me not everyone is as excited to see it as you think they are. Even if we wanted to hunt down and prosecute everyone who puts someone's nude photo on the internet, it would be physically impossible to do so. Law enforcement has more pressing issues to take care of.

Now, when we start moving into more harmful things such as extortion and posting personal identifiers like addresses, etc., then I do agree with Melony, that IS illegal, it SHOULD be illegal, and those doing it should be prosecuted.

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Avatar for user 'Peking_Duck_SD'

Peking_Duck_SD | January 10, 2014 at 9:19 a.m. ― 10 months, 2 weeks ago

By the way, one law that DOES need to be enacted and fast:

"It is illegal for an employer to make hiring or firing decisions or subject an employee to any discrimination based on a nude or sexual online image".

This should be a no brainer, and speaking of no brains, the political hacks up in Sac need to be passing this right away.

This is so commonplace today, and by the time today's youngsters are adults and in the workplace, most of them will likely have exchanged some sort of sexual image or text message that could easily find it's way to the public domain.

As long as someone is qualified and competent to do the job, it should not matter one bit if they have a nude image that some sleazo posted online.

Companies are overstepping their bounds by going and looking this stuff up and the state of California as well as the U.S. Government needs to put protections in place for the workers.

Write your representatives. Yes, I know 99% of them are do nothing political hacks! but it's the only way to get so etching done. Maybe some nude selfies of Mr. Brown or Mr.Issa (eew, no breakfast today) need to surface to get some of these lawmakers off their duff and protect employees from this discrimination.

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Avatar for user 'michael1111'

michael1111 | January 14, 2014 at 6:24 a.m. ― 10 months, 2 weeks ago

This is half of the story, the other half is that this is a site owned and operated by an online hacker who hacked into women's password protected emails, private facebook accounts, phones, computers and along with a team of others and posted their pictures along with full names, addresses at times. Revenge porn is a disguise for the corrupt nature of what really went on in this site. These are sexual predators who stalk women. The hackers need to be caught and held accountable. They go after a pretty face on the internet and stalk her, breaking into her emails to find anything they can. Its about making money to take the pictures off. Other predator sites copy and post the pictures on their sites to lure men in for money. This is an underground online hacking organization. Kevin Bollaert has a computer science degree and loved the challenge of breaking into accounts and taking what was not his. It is a game for these predators. Everyone is at risk. My wives pictures were stolen and posted on this God awful site. Its taken months to clean her pictures off the web. Our entire family has gone through literal HELL because of this site . He needs to be held accountable for his actions. He needs prison time and to pay back the thousands he stole from his victims. These are all sexual offenses as far as I am concerned.

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