California law enforcement arrest operator of revenge porn site

San Diego police yesterday arrested the operator of a revenge porn site and charged him with "31 counts of conspiracy, identity theft, and extortion." According to The Los Angeles Times:

A 27-year-old San Diego man was arrested Tuesday on suspicion of operating a "revenge porn" website and demanding up to $350 to remove sexually explicit photos of women that were often posted by angry former boyfriends or ex-husbands.

 

Kevin Christopher Bollaert was arrested by California Department of Justice agents and is being held at San Diego County jail on $50,000 bail. He faces 31 felony counts of conspiracy, identity theft and extortion.

 

"Online predators that profit from the extortion of private photos will be investigated and prosecuted for this reprehensible and illegal internet activity," said Atty. Gen. Kamala D. Harris.

 

Bollaert allegedly created a website in December 2012 that allows the anonymous posting of nude and sexually explicit photos. The website required that the poster include the subject's name, location, age and Facebook profile.

 

Prosecutors said more than 10,000 images were posted, from California and other states.

As I have said, I believe that laws that subject to criminal liability people who send sexually explicit images of an ex-lover without their consent could be crafted so as to conform to the First Amendment.  This case, however, raises the more difficult question as to whether online publishers of revenge porn ought to be subject to prosecution.

In Bartnicki v. Vopper, the Supreme Court held that the publication of material illegally obtained by a third party is protected by the First Amendment. The Court said: "In this case, privacy concerns give way when balanced against the interest of publishing matters of public importance...We think it clear that a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." 532 U.S. 514, 536 (2001). However, the Court emphasized that its ruling applied narrowly to matters of "public concern," and it is still unclear what qualifies as such. One would think that revenge porn wouldn't qualify...

Further, assuming that revenge porn is a matter of public concern, there is the question as to whether revenge porn could be considered to have been illegally obtained by a third party. Arguably, revenge porn generally is not obtained illegally; the third party presumably received the image (or took it himself) from its subject. 

In this case, the site operator charged the victims of revenge porn to have pictures of them removed from his site, which perhaps makes this case easier. But, suppose he took the pictures down willingly; and/or suppose he did not include the names or locations of the victims... 

These issues and others will continue to arise as more states criminalize revenge porn. Lawyers and legislators will have to draw lines differentiating the legal from the illegal, which will make these debates increasingly interesting for legal scholars--but painful for victims. 

CRL&P related posts:

• School suspends teacher after receiving tip that her photo appeared on revenge porn site
• Criminalizing revenge porn need not violate the First Amendment
• Bloomberg.com editorial weighs in on revenge porn debate
• Pennsylvania lawmaker expected to introduce bill criminalizing revenge porn