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Revenge porn Introduction

Imagine one of those nightmares where you are completely naked in front of everybody.
Prisoned in a dream where theres no way to escape, feeling totally powerless and
helpless. Imagine not this is not a dream. Yes, for some people one of the most common
fears can come true.
The topic of this article is what in the United States is called revenge porn. Revenge porn
or involuntary pornography, is the practice of posting on the Internet pictures of
individuals naked or engaging in sexual activities. In the United States revenge porn is a
debated topic
1
because for the particular characteristics of the American legislation is
not easy remove those pictures from the Internet. The Communication Decency Act
Section 230, enacted at the beginning of the Internet development, granted a safe shield
for ISPs for third parties content posted on their platforms. The courts interpreted Section
230 extremely broadly making very hard to act against websites. In addition to that, the
first amendment the right to freedom of speech and expression benefits from
extensive protection - legally and culturally which makes difficult to enact any legislation
concerning speech. With that being said, the public opinion is aware of the harm that such
exposure may cause and therefore is considering which measures can be taken. The
nightmare revenge porn victims sometimes cope with is not only find their very private
moments posted on the Internet but also see them associated with other social networks
profiles. Some of those websites connect the unauthorised pictures to social network
profiles like Facebook, Twitter and LinkedIn
2
. In other words, what a revenge porn victim
might face, is to find their name and the word LinkedIn typed on Google and see a page
with their naked pictures popping out. This practice affects women more than men. This
type of market looks primarily for pictures of girls. Moreover, like other forms of violence

1
See for example: Fighting Back Against Revenge Porn, New York Times Editorial Board, October 12, 2013,
http://www.nytimes.com/2013/10/13/opinion/sunday/fighting-back-against-revenge-porn.html?_r=0; The Crusading
Sisterhood of Revenge-Porn Victims, Maureen O Connor, The Cut, August 29, 2013; The topic has a specific page on
The Huffington Post http://www.huffingtonpost.com/news/revenge-porn/
2
Like IsAnyoneUp or UgotPosted, some websites would offer a reward for additional information about the victims
like IsAnybodyDown http://denver.cbslocal.com/2013/02/03/revenge-porn-website-has-colorado-woman-outraged/
against women like domestic violence of rape, the offender wants to harm the person who
has left him, offend him or disappointed him
3
. The offender has the precise intent to
humiliate his victim aware that a woman might face more social consequences
4
. Moreover
victims of revenge porn sometimes are molested and harassed. Because some websites
post along with the pictures personal information like address and telephone number
some of them face true physical threats. The main proposal among scholars and
lawmakers is to criminalize the practice of posting private pictures of subjects who have
not consented. Indeed, some oppose this argument. This article will primarily report the
main aspects of the debate about revenge porn in the United States explaining the
characteristics of the phenomenon and exposing the legal issues. The different positions
among scholars will be reported and the legislation developments will be summarily
covered.

Revenge porn websites
IsAnyoneUp is one of the most cited examples of revenge porn websites. It was a page
were users were invited to posted pictures of relationships gone sour as the website
declared in its title. In practice, exes but ex-boyfriend especially - were encouraged to
upload private pictures of their relationships. The websites like IsAnyoneUp are normally
platforms were is posted any type of content normally adult content. In the United
States the Communication Decency Act section 230 protects website owners form content
posted by third parties, unless as it will be explained in the article the platform is built
with the only purpose of creating unlawful content. Thus, in order to find a legal remedy

3
Many forms of domestic violence like the killing,beating,stalking of ex-wives or girlfriends occur because the
offender is not able to accept the break up or considers the partner the cause of his suffering who therefore deserves
to be punished see:
4
This statement will be later explored. Saying that for a woman can be more harmful be posted naked or engaging in
sexual activities must not lead to endorse by any means the stereotype for which female sexuality is more shaming
than it is for a man. However, the facto, society might see with more judgment a woman than a man and therefore a
woman can be more hurt.
the only part that can be sued is the actual uploader, in other words the website is never
considered liable for content posted by third parties
5
.
In some particular circumstances websites are considered engaging unlawful practices. Its
the case of UgotPosted which has been accused of advertising a service
ChangeMyReputation that would remove nude photos for a fee of $300-350. Kevin
Bollaert, the website owner, was arrested in December 2013 charged with 31 felony
counts of identity theft, extortion and conspiracy. In the pretrial hearing the Court of San
Diego determined that the state of California has enough evidence to proceed with its case
against him. The same is said of another website called IsAnybodyDown which used to run
a similar service The Takedown Hammer which is also facing legal threats
6
.
Some of these website have the particular feature of granting complete anonymity to the
users like Anonib.com. Anonib.com praises to be the best anonymous image board
which assured uploaders no retention of information that might identify them (as the IP
address). This particular case shows how much might be difficult for the victims prove the
identity of the uploader and considering that the website cant be sued
7
find relief for the
victims can be hard.




5
In the article the Communication Decency Act, that is the reason why websites are immunized will be analysed.
6
See Mark Randazza investigating David Blade the owner of IsAnybodyDown
http://randazza.wordpress.com/2012/10/30/lets-fuck-up-david-blade-attorney-at-law-and-isanybodydown-com-
whos-with-me/
7
See Communication Decency Act in this article.
Revenge porn victims: the most common legal remedies

Copyright infringement

Whether the victim is willing to register a copyright
8
and file a lawsuit can seek up to
$150,000 in statutory damages for each instance of willful infringement. If the website
successfully defeats the presumption of willfulness, victims are still entitled to have their
images removed
9
.
The No Electronic Theft (NET) Act targets infringers whose behaviour could not be
deterred by monetary damages alone
10
. The NET Act makes willful copyright infringement
a crime if the total retail value of the infringed work exceeds $1,000. Violations are
punishable by up to ten years in prison. Scholars believe that revenge porn sites operators
could unlikely be charged with criminal infringement
11
. Courts have expressed a willingness
to use the highest dollar value possible to calculate the retail value of infringed works
12
.
Revenge porn websites its deemed to earn from $3,000
13
to $13,000
14
per month in

8
In order to claim the copyright upon something the copyright has to be registered which normally leads to further
disclosure of personal information
9
Levendowski, Amanda M., Using Copyright to Combat Revenge Porn (2014). Tri-State Region IP Workshop, Winter
2014; NYU Journal of Intellectual Property & Entertainment Law, Vol. 3, 2014. Available at SSRN:
http://ssrn.com/abstract=2374119 or http://dx.doi.org/10.2139/ssrn.2374119
10
Amanda Levendowski reports that high criminal penalties for copyright infringement have been meanly provided
to deter would-be infringers, website operators who know they are judgment proof, meaning they do not have the
assets to sustain a judgment, may not be deterred by the threat of monetary damages. The Digital Theft Deterrence
and Copyright Damages Improvement Act of 1999 amended section 504(c) and raised the statutory damages available
under the Copyright Act. Pub. L. No. 106-160, 113 Stat. 1774.
11
Id. Note 9
12
See, e.g., United States v. Armstead, 524 F.3d 442, 443 (4th Cir. 2008) (holding that retail
value is determined by taking the highest of the face value, par value, or market value of copies of the copyrighted
material in retail context (internal quotations excluded).
13
Cory Brittains self-reported revenue during the height of IsAnybodyDown. Revenge
Porn Website Has Colorado Women Outraged, CBS4 (Feb. 3, 2013, 10:13 PM),
http://denver.cbslocal.com/2013/02/03/revenge-porn-website-has-colorado-woman-outraged/ -at_pco=cfd-1.0
advertising revenue
15
but at the moment there is no knowledge about prosecutions of
revenge porn platforms under these laws
16
.

Tort Law

Intentional infliction of emotional distress and the privacy tort of public disclosure of
private fact could provide relief. In Doe v. Hofstetter
17
defendant created two fake Twitter
accounts and used them to post disparaging statements and photographs about the
plaintiff. The court determined this was sufficiently extreme and outrageous behaviour to
support a cause of action for intentional infliction of emotional distress. In another case,
Taylor v. Franko
18
, the plaintiff obtained damages for defamation, privacy invasion,
intentional infliction of emotional distress; the court significantly states that the plaintiff
was entitled in additional damages for future pain and emotional distress on Plaintiffs
claims against Franko for Public Disclosure of Private Facts. In other words, the court
recognized the difficulty to take the pictures down from the Internet and the impossibility
to act against any Internet provider for that matter.
The problem to act against the actual uploader is to bring the necessary proves because in
some cases the victim might not know exactly how her pictures ended up online.
Sometimes the accounts of the victim or the ex-boyfriend can be hacked. In that case not
only proving the author of the hacking its hard but sometimes the ex-boyfriend tries to
defend himself bringing this argument
19
. If someone uses a public connection, in absence

14
Hunter Moores self-reported revenue for IsAnyoneUp see David Kluft, Revenge Porn: IsAnyoneUp on Copyright
Law? December 20th, 2011, http://www.trademarkandcopyrightlawblog.com/2011/12/revenge-porn-is-anyone-up-
on-copyright-law/
15
Whether advertising revenue is a satisfactory metric for retail value remains unclear, see Levendowski supra
16
Lawsuits in revenge porn cases are normally brought with different grounds like intentional infliction of emotional
distress of invasion of privacy tort, see below in the article in Tort Law .
17
Doe v. Hofstetter, No. 11-cv-02209-DME-MJW, 2012 WL 2319052, at *8 (D. Colo. June 13, 2012)
18
Taylor v. Franko, No. 09-00002 JMS/RLP, 2011 WL 2746714, at 3 (D. Haw. June 12, 2011)
19
See Danielle Keats Citron, Revenge Porn Should Be a Crime, CNN (Jan. 16, 2014, 3:49 PM), http://www.cnn.com
/2013/08/29/opinion/citron-revenge-porn/ (discussing Janesexperience) or http://techlawgic.com/2014/04/revenge-
porn-accusations-proof-problems/
of other type of proves, is impossible to know who actually uploaded the content.
Moreover, sometimes revenge porn websites like Anonib grant anonymity not tracking the
IP address.
In order to release the identity of who published the pictures the plaintiff may need to a
subpoena
20
, a judges order that intimates the website or the server to release the identity
or the IP address of the user. Under the U.S law anonymous speech is protected so that
the courts have to balance different constitutional values
21
. Subpoena are often granted in
these cases however the advocates for a criminalization of revenge porn stress that the
legal process to try to obtain some relief is legally complex and therefore expensive for the
victims
22


Sexual harassment and Cyberstalking

Victims of revenge porn might be variously harassed online and offline. However this is a
consequence of revenge porn but the mere uploading of private content cannot be

20
A subpoena is a writ issued by a government agency, most often a court, that has the authority to compel testimony
by a witness or production of evidence under a penalty for failure. The use of subpoena to disclose information stored
by companies is debated see for example Larkin Hoffman, Steven M Cerny, Lexology, November 16 2011,
9558151da85b Civil subpoenas and internet anonymity: combating anonymous statements,
http://www.lexology.com/library/detail.aspx?g=83d6debd-deb8-4ed2-9db2- ; First Time Videos v. Does 1-37, 2011 WL
1431619 (N.D. California, April 14, 2011); Hard Drive Productions v. Does 1-118, 2011 WL 1431612 (N.D. California,
April 14, 2011); One Subpoena Is All It Takes to Reveal Your Online Life Saul Hansell, July 7 2008,
http://bits.blogs.nytimes.com/2008/07/07/the-privacy-risk-from-the-courts/?_php=true&_type=blogs&_r=0; Evan
Brown, Does the constitution protect anonymity?, IntenetCases Law blog, posted May 22, 2012
21
See for example Jason M. Shepard, Genelle Belmas, Anonymity, Disclosure and First Amendment
Balancing in the Internet Era: Developments in Libel, Copyright, and Election Speech, Yale Journal of Law
and Technology, Issue 1, Volume 15, Yale Journal; Faconnable USA Corp. v. Doe, Slip Copy, 2011 WL 2173736
(D.Colo., Jun 2, 2011); Sandals Resorts Intern. Ltd. v. Google, Inc., N.Y.S.2d , 2011 WL 1885939, (N.Y.A.D. 1 Dept.,
May 19, 2011); In re Does, S.W.3d , 2011 WL 1447544 (Texas, April 15, 2011)
22
Citron, Danielle Keats and Franks, Mary Anne, Criminalizing Revenge Porn (May 19, 2014). Wake Forest Law Review,
Vol. 49, 2014, p. 345+; U of Maryland Legal Studies Research Paper No. 2014-1. Available at SSRN:
http://ssrn.com/abstract=2368946
qualified as harassment. Under U.S law sexual harassment is regulated primarily in
employment and educational settings contexts
23
. In order to fall under this category non-
consensual pornography has to be produced, distributed, or accessed by a victims co-
workers, employers, school officials, or fellow students and raised the possibility of a
hostile environment
24
.
Some scholars argue
25
that criminal harassment laws punish the distribution of sexually
explicit images when there is intent to harm whether others
26
argue that criminal
harassment and stalking laws only apply to defendants who engage in repeated harassing
acts. The federal cyber stalking statute, 18 U.S.C. 2261A, bans as a felony the use of any
interactive computer service to engage in a course of conduct intended to harass or
intimidate someone in another state that either places that person in reasonable fear of
serious bodily injury or death or that would reasonably be expected to cause the person to
suffer substantial emotional distress.
27
A single posting of someones name, address, and
sexually explicit image can cause serious damage but would not amount to a harassing
course of conduct. Sometimes state harassment laws only apply to persistent abuse
communicated directly to victims. A New York state court dismissed charges against a man
who posted his ex-girlfriends nude photos on Twitter and sent the photos to the womans
employer and sister
28
. The court justified its dismissal of the harassment charge on the

23
See Citron and Franks, note 22
24
Id note 22; Citron and Franks however have both worked to expand the notion of protection against sexual
harassment which normally has little force outside employment settings. See Danielle Keats Citron, Cyber Civil Rights,
89 B.U. L. REV. 61, 9195 (2009), Danielle Keats Citron & Helen Norton, Intermediaries and Hate Speech: Fostering
Digital Citizenship for Our Information Age, 91 B.U. L. REV. 1435, 143653 (2011); Mary Anne Franks, Sexual
Harassment 2.0, 71 MD. L. REV. 655, 657 (2012)
25
Eric Goldman, Californias New Law Shows Its Not Easy to Regulate Revenge Porn, FORBES (Oct. 8, 2013, 12:03 PM),
http://www.forbes.com /sites/ericgoldman/2013/10/08/californias-new-law-shows-its-not-easy-to-regulate-revenge-
porn/
26
Citron and Franks in Criminalizing Revenge Porn Id. note 22
27
18 U.S.C. 2261A(2) (2012). Under the federal cyber-stalking statute, defendants can be punished for up to five
years in jail and fined $250,000. See Citron and Franks note 22
28
People v. Barber, 2014 N.Y. Slip. Op. 50193(U) (N.Y. Sup. Ct. Feb. 18, 2014); Mary Anne Franks, We Need New Laws
to Put a Stop to Revenge Porn, INDEP. (Feb. 23, 2014), http://www.independent.co.uk/voices/comment/we-need-
new-laws-to-put-a-stop-to-revenge-porn-9147620.html
grounds that the man had not sent the nude photos to the woman herself, but rather to
others. Revenge porn posted on third-party sites would not be banned under harassment
statutes that require direct contact with victims.
29
When criminal law is engaged the state
attorney decides whether or not pursued the case. Therefore, the prosecutors might also
decide to abandoned a case because there are no sufficient evidences or the costs of the
case do not match the state attorney exigencies
30
. A well-known anti revenge porn
activist, Holly Jacobs
31
, reported that investigators traced one of the porn posts to her exs
IP address. They told Jacobs that they needed a warrant to search his computer for further
evidence because her ex had claimed that he had been hacked and denied releasing
Jacobss pictures. The charges against her ex were dismissed because the prosecutors
decided they could not justify seeking a warrant for a misdemeanour case
32
.


Other elements of Criminal Law

Hunter Moore, the most famous revenge porn guru is now facing the indictment from
the U.S. District Court with conspiracy to access a protected computer without
authorization to obtain information for private financial gain and other counts. On
multiple occasions, Moore paid a specialized subject to break into the email accounts of
victims and steal nude photos to post on the website IsAnyoneUp.com. Moore allegedly
paid Evens, the hacker who helped him to obtain the pictures over $2000 for the hacked
selfies of 7 individuals. One of those victims named Kayla Laws went public about

29
See Citron and Franks in Criminalizing Revenge Porn paragraph Punishing Original Disclosers Under Criminal
Law; details note 22
30
The state attorney is an elected figure who sometimes has a political connotation or has specific goals for which
he or she has elected for.
31
The story of Holly Jacobs in http://www.endrevengeporn.org/welcome/ of which Holy Jacobs is a founder.
32
Danielle Citron, How to Make Revenge Porn a Crime: Worried About Trampling on Free Speech? Dont Be., SLATE
(Nov. 7, 2013, 1:04 PM),
http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/making_revenge_porn_a_crime_without_t
rampling_free_speech.html.
appearing on the site claiming that she had taken sexy photos with her phone that she had
emailed to herself, but that she never shared them with others. She said they could only
have been obtained through hacking. Her mother, Charlotte Laws, contacted the FBI
leading to an investigation (after building a public campaign). Moore and Evens face up to
five years for the conspiracy and computer hacking counts, according to the FBI, and up to
two years for aggravated identity theft. Currently cases like Hunter Moore are exceptions,
the trial process has just begin and the outcome has yet to come. More common is
another mistake revenge porns websites make. Kevin Bollaert owner of UGotPosted the
website where the uploaders posted 10,000 graphic photos of women including their
names, locations, and social media accounts is believed to have run another site called
changemyreputation.com. The website, which was advertised on UGotPosted, offered to
remove images from the first site, charging victims as much as $350 each to do so. The
case is the first against an operator of a revenge porn site rather than a single poster,
according to the California attorney generals office, where the trial takes place. Bollaert
faces 31 counts of identity theft, extortion, and conspiracy. He has pleaded not guilty.
Authorities say that Bollaert told investigators he was making about $900 a month from
advertising, but PayPal records indicated that he had also received tens of thousands of
dollars from users paying to have their images removed. Similarly, another website has
attracted the attention of the public . IsAnybodyDown is accused by the First Amendment
lawyer Marc Randazza
33
to run a similar system, the TakeDownHummer which offer the
same type of services where offered from UGotPosted. Randazza stated in his blog
34
that
he has traced the TakedownHammer address and found that is the same of the
IsAnyBodyDown address
35
.



33
http://randazza.wordpress.com/; http://en.wikipedia.org/wiki/Marc_Randazza
34
Id. supra
35
http://randazza.wordpress.com/2012/10/30/lets-fuck-up-david-blade-attorney-at-law-and-isanybodydown-com-
whos-with-me/
Why its hard to take down revenge porn under U.S Law :
Section 230 Communication Decency Act

To comprehend why these type of website exist is necessary explain the Communication
Decency Act (CDA). The European legislation would offer protection in analogous
situations: most European countries have extensive privacy laws that would consider
revenge porn a crime in most cases
36
. Before Congress passed Section 230, courts applied
traditional common law publisher-distributor liability to ISPs for alleged defamation posted
by users
37
. Given the novelty of the Internet during the early 1990s, courts encountered
difficulties regarding how to fit ISPs into the distinct publisher-distributor frameworks
38
.
The events that lead the Congress to intervene are of different nature: on one hand two
lawsuits attracted the attention of the general public about ISPs liability
39
. On the other
hand the United States was facing what was called Great cyberporn panic which was the
believe among public opinion and part of the Congress that the Internet was exclusively
made to exchange pornographic material. The legal proceedings which attracted public
opinion attention concerned the liability of Internet Service Providers and websites for
content posted or carried by third parties. The first, Cubby, Inc. v. CompuServe, Inc., a

36
E.g. Italy, France
37
Under the common law, a party can be found liable for the distribution of defamatory material if the party has
knowledge of the defamatory material and fails to remove it. Traditional examples of entities that faced distributor
liability include news vendors, bookstores, and libraries. By contrast, a party may be found liable for the publication of
defamatory content where the party repeats or otherwise republishes defamatory matter . . . as if he had originally
published it. Factors that indicate publisher liability include evidence of exercising editorial control and judgment
over the choice of material published. For further details about this topic see the note below.
38
See for a detailed analyses of the Communication Decency Act Section 230, courts application and academic
critiques: Reidenberg, Joel R. and Debelak, Jamela and Kovnot, Jordan and Miao, Tiffany, Section 230 of the
Communications Decency Act: A Survey of the Legal Literature and Reform Proposals (April 25, 2012). Fordham Law
School- Center on Law and Information Policy; Fordham Law Legal Studies Research Paper No. 2046230. Available at
SSRN: http://ssrn.com/abstract=2046230 or http://dx.doi.org/10.2139/ssrn.2046230
39
Cubby v. CompuServe Inc, No. 90 Civ. 6571, United States District Court, S.D. New York., Oct. 29, 1991; Stratton
Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995)
federal court applied the distributor standard of liability to the computer network
CompuServe
40
in response to defamation claims that arose out of content posted in
CompuServes Journalism Forum. The court considered CompuServe a distributor because
CompuServe was in essence an electronic, for-profit library, containing publications over
which it had virtually no editorial control. Because for CompuServe examining every one of
its publications for defamatory content would have been as onerous as for traditional
library or bookstore, applying therefore distributor liability to electronic databases like
CompuServe. In other words, the court held that CompuServe neither knew nor had
reason to know of the allegedly defamatory statements posted on the Journalism Forum.
On the contrary in Stratton Oakmont, Inc. v. Prodigy Services Co., the court applied the
publisher standard of liability to Prodigy, which hosted on one of its electronic bulletin
boards a post by some Prodigys user containing allegedly defamatory statements. The
Stratton court distinguished Prodigy from CompuServe because Prodigy possessed an
automatic software screening program and a business policy that permitted its Board
Leaders to remove certain messages that violated its content guidelines
41
. The court
believed this evidence of a sufficient editorial control to deem Prodigy a publisher. After
Stratton, ISPs, members of the interactive computer services industry, and advocates for
the deregulation of the Internet petitioned Congress arguing that the reasoning of the
Stratton court would discourage ISPs from filtering content and expose them to excessive
liability. Prodigy was found to be a publisher because it held itself out to the public and its
members as controlling the content of its computer bulletin board. By contrast
CompuServe was considered a distributor because it exercised no control over statements
made by third parties. In other words, a completely hands-off approach would subject
ISPs to lower standards of liability. The Stratton decision and the increasing public concern

40
CompuServe (CompuServe Information Service, also known by its acronym CIS) was the first major commercial
online service in the United States. It dominated the field during the 1980s and remained a major player through the
mid-1990s, when it was sidelined by the rise of services such as AOL with monthly subscriptions rather than hourly
rates. Since the purchase of CompuServe's Information Services Division by AOL, it has operated as an online service
provider and an Internet service provider. The original CompuServe Information Service, later rebranded as
CompuServe Classic, was shut down July 1, 2009.
41
See Fordham CLIP survey note 38
about pornography on the Internet served as catalysts for legislators to consider some
limited regulation of the Internet
42
. On February 1, 1996, Congress passed the CDA. The
aim of section 230 was promoting and developing the internet growing- so Section 230
states in the Findings
43
. The two key aspects of the regulation are no provider or user of
an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider and no provider or user
of an interactive computer service shall be held liable on account of any action voluntarily
taken in good faith to restrict access to or availability of material that the provider or user
considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or
otherwise objectionable, whether or not such material is constitutionally protected.
However the interpretation of the courts have been the real trigger that has established a
broad interpretation of the Section. In a nutshell, the courts have considered ISPs
completely immune even when the platform negligently ignores the complains of someone
damaged by third party content. In Zeran
44
an anonymous user of AOLs bulletin board
services posted messages advertising t-shirts that displayed objectionable slogans about
the Oklahoma City Federal Building bombing. The home phone number of Mr Kenneth
Zerans as the contact for interested purchasers. From April 25, 1995 to May 14, 1995,
Zeran received numerous harassing phone calls throughout the day in response to the
postings. Mr Zeran contacted AOL on various occasions about removing and retracting the
false messages. Although AOL representatives informed Zeran the company would remove

42
See Fordham CLIP survey note 38
43
the Congress finds the following: (1) The rapidly developing array of Internet and other interactive computer
services available to individual Americans represent an extraordinary advance in the availability of educational and
informational resources to our citizens. (2) These services offer users a great degree of control over the information
that they receive, as well as the potential for even greater control in the future as technology develops. (3) The
Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique
opportunities for cultural development, and myriad avenues for intellectual activity. (4) The Internet and other
interactive computer services have flourished, to the benefit of all Americans, with a minimum of government
regulation. (5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural,
and entertainment services. See 47 U.S. Code 230 - Protection for private blocking and screening of offensive
material.
44
Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997),[1] cert. denied, 524 U.S. 937 (1998)
the postings and deactivate the account that created them, AOL failed to do so. Zeran filed
suit against AOL, and AOL asserted Section 230 as an affirmative defence. Zeran argued
that AOL was a distributor, since AOL was on notice of the false nature of the postings
and therefore precluded from the benefit of Section 230 because 230(c)(1) only states that
ISPs shall not be treated as publisher or speaker of information provided by another. The
Fourth Circuit granted immunity to AOL under Section 230. The appellate court explained
that imposing liability based on notice would contradict Congress intent behind Section
230.
Cecilia Barnes ended a relationship with her boyfriend. In retaliation, he created and
posted on a fake profiles of Barnes on Yahoo! nude photos of Barnes. The post contained
solicitations to the engage in sexual intercourse, Barnes home address, phone number,
and place of employment. Once Barnes became aware of the profiles, she notified Yahoo!
that they were unauthorized and requested that they be taken down. Yahoo! failed to
respond to Barnes and took no action until the day before a local news station was
scheduled to broadcast the story. On that date, Yahoo!s Director of Communications
called Barnes and told her she would personally bring the matter to the division
responsible for unauthorized profiles. The profiles, however, remained online until Barnes
filed suit against Yahoo! at which point they were removed. The Ninth Circuit held that
Section 230 immunity extends beyond defamation claims to include any cause of action
that inherently requires the court to treat the defendant as the publisher or speaker of
content provided by another
45
.
Barnes alleged both tort and promissory estoppel claims against Yahoo! for its failure to
respond to her notices and remove the profiles. The court found that Barnes tort claim of
negligent undertaking treated Yahoo! as a publisher because it required the ISP to act as
publisher by removing content. The Barnes decision reflected that the court interpreted
the Section 230 immunity to broadly encompass any claim that treats an ISP as a publisher
of content created by another
46
.

45
Id. note 38
46
Barnes v. Yahoo!, Inc., 570 F. 3d 1096 (D. Or. Nov. 8, 2005)
Only was case was offering the ground to a more restrict interpretation of the CDA. In Fair
Housing Council of San Fernando Valley v. Roommates.com
47
Roommates.com runs a
website that helps people locate apartments and rooms to rent. The Fair Housing Council
of San Fernando Valley and the City of San Diego sued Roommates.com for violating the
Fair Housing Act based. Aspects of the Roommates.com website where in contrast with the
Fair Housing Act such as questions the website posed to prospective subscribers during
registration about the subscribers gender, sexual orientation, and other personal
information and the subscribers preferences with regard to a potential roommates
gender, sexual orientation, and number of children.
The district court held that Roommates.com was immune under Section 230. However, the
Ninth Circuit Court of Appeals reversed founding that Roommates.com was an information
content provider because the company developed the questions and choices posed to users
and then published the public profiles based on users answers.
With that being said, Roommates has been since then the only judgment that has tried to
narrow the expansive immunity of websites and providers. Sarah v. Dirty World
Entertainment Recordings LLC
48
is case in which the Sixth Circuit Court of Appeals adopted
the Roommates material development test for limiting immunity under section 230 of the
Communications Decency Act (CDA). A libel suit was pursued by Sarah Jones, formerly a
high school teacher and Cincinnati BenGals cheerleader, against Dirty World, LLC, (Dirty
World) operator of the celebrity gossip web site TheDirty.com, concerning two postings on
TheDirty.com that Dirty World refused to remove. The court rewarded Jones with
$338,000 applying the same test used in Roommates reasoning that TheDirty.com was
explicitly inciting users to post the dirt whether that was true or false. In other words the
website was built with the purpose of spreading defamatory material. The Court of Appeal
reversed recently in 2014, granting immunity under Section 230 and arguing that the court
erroneously applied Section 230. The appellate court held that the district courts test for
what constitutes creation or development was too broad. Instead, the court looked to
the Ninth Circuits decision in Fair House. Council of San Fernando Valley v.

47
Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008)
48
Jones v. DIRTY WORLD ENTERTAINMENT RECORDINGS, LLC, Dist. Court, ED Kentucky 2011
Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) and adopted the material contribution
test from that opinion: [W]e interpret the term development as referring not merely to
augmenting the content generally, but to materially contributing to its alleged
unlawfulness. In other words, a website helps to develop unlawful content, and thus falls
within the exception to section 230, if it contributes materially to the alleged illegality of
the conduct. In the Sixth Circuits language, [A] material contribution to the alleged
illegality of the content does not mean merely taking action that is necessary to the display
of allegedly illegal content. Rather, it means being responsible for what makes the
displayed content allegedly unlawful. The court held that defendants did not materially
contribute to the defamatory content of the statements simply because those posts were
selected for publication. Further, the website did not require users to post illegal or
actionable content as a condition of use. The websites content submission form simply
instructed users generally to submit content. The court found the tool to be neutral in
orientation and design as to what third parties submit. Therefore, the website design did
not constitute a material contribution to any defamatory speech that was uploaded.

Criminalization of revenge porn

The current effort of those who look for a legal solution to act against revenge porn
websites is to advocate for the criminalization of it. Among the most well-known advocates
of the criminalization there are Danielle Citron and Mary Ann Franks. In the article
Criminalizing Revenge Porn
49
Citron and Franks argue that the current civil and criminal
remedies are absolutely insufficient and therefore the law should intervene specifically to
prevent this type of harm.
Citron and Franks point out is that Criminal law is essential to send the clear message to
potential perpetrators that non-consensual pornography inflicts grave privacy and
autonomy harms that have real consequences and penalties. They argue that the harm
inflicted to the victims of revenge porn is of very serious nature, therefore deserves the
condemn of the society as large which is embodied in the public action of the State with

49
Reference details note 22
criminal law. They argue that the fact that non-consensual pornography does not involve
physical contact does not change the fact that it is a form of sexual abuse. And victims
often internalize socially imposed shame and humiliation every time they see them and
every time they think that others are viewing them. They bring to support their argument
different sources as the definition of the International Criminal Tribunal for Rwanda
(ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) which
have employed a definition of sexual violence that does not require physical contact. In
these tribunals, forced nudity was found to be a form of sexual violence. In the Akayesu
case, the ICTR found that [s]exual violence is not limited to physical invasion of the human
body and may include acts which do not involve penetration or even physical contact.
50
In
the Furundzija case, the ICTY similarly found that international criminal law punishes not
only rape, but also all serious abuses of a sexual nature inflicted upon the physical and
moral integrity of a person by means of coercion, threat of force or intimidation in a way
that is degrading and humiliating for the victims dignity. They argue that revenge porn is
often close to domestic violence reporting that victims are threatened to see their pictures
disclosed online if they decide to leave the relationship
51
. One of the crucial point of Citron
and Franks argument is that revenge porn would be gender targeted and therefore affect
disproportionately a part of the population. They bring anti-discrimination law grounds,
arguing that Our society has a poor track record in addressing harms that take women
and girls as their primary targets. Though much progress has been made towards gender
equality, much social, legal, and political power remains in the hands of men. The fight to
recognize domestic violence, sexual assault, and sexual harassment as serious issues has
been long and difficult, and the tendency to tolerate, trivialize, or dismiss these harms
persists. That revenge porn affects more woman than man is undeniable. In Citron and
Franks report a study conducted by the Cyber Civil Rights Initiative which describes that
90% of those victimized by revenge porn were female
52
. In addition to that, the
consequences are normally worst for women than man. Firstly revenge porn results often

50
Id.
51
Id.
52
Cyber Civil Rights Statistics on Revenge Porn, at 2 (Oct. 11, 2013) as cited by Citron an Franks
into some form of sexual harassment, online or offline: victims are harassed by anonymous
strangers via e-mail messages or on their social network profiles. Gender stereotypes take
part in the victim humiliation as women would be seen as immoral sluts for engaging in
sexual activity, whereas mens sexual activity is generally a point of pride- so that the
private pictures ended up in so called slut-shaming websites where the subjects are
publically humiliated and insulted
53
.
Practically speaking they argue that make revenge porn a crime would serve as deterrent
for uploader. More than the actual purpose of removing the pictures which is the first
intent of the victims- criminalizing revenge porn would discourage angry ex-boyfriends to
post this type of content. The deterrent effect of criminal action is a discussed topic in
criminal law
54
. Among criminal law scholars is believed that the actual enforcement of the
norm has more deterrence than the criminal provision per se
55
. Considering that in the
United States criminal action is discretional the actual deterrence of criminal law would be
determined considering how many actions start, in which circumstances and the how
much severely punished
56
. Currently, revenge porn is a popular topic therefore
prosecutors may be more inclined to start an investigation. Nonetheless some prosecutors
admit [revenge porn cases] are difficult cases to investigate. For one, victims are often too
embarrassed to report the theft of nude photos. For another, nude photos arent
prioritized. The agents say they have to fight for the time they spend investigating them. -
Its hard to sell a victims year of anguish vs. a $5 million loss by a company- said one
agent. - For a lot of cyber squads, if theres not a national security tie-in or huge money

53
See for example http://www.cheaterville.com/; http://shesahomewrecker.com/;
54
F E Zimring; G J Hawkins DETERRENCE - THE LEGAL THREAT IN CRIME CONTROL, University of Chicago Press
Chicago, IL 60637, 1973
55
Valerie Wright, "Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment". The Sentencing
Project. Retrieved 13 October 2012
56
Revenge porn that in some states is already criminally punished but is considered a misdemeanour is any "lesser"
criminal act in some common law legal systems. Misdemeanours are generally punished less severely than felonies,
but theoretically more so than administrative infractions (also known as minor, petty or summary offences) and
regulatory offences. Many misdemeanours are punished with monetary fines
signs, they cant take it.-
57
This statement highlights which problems criminal law brings.
Firstly, as the case of Holly Jacobs shows, because criminal law is discretional some
prosecutors might not want to take action. Then, for the victims talk with a lawyer may be
more comforting that with public officials. Victims can choose to whom ask for help,
preferring a lawyer that is specialized in this kind of topics or at least another woman. Its
not rear to find subjects ready to blame the victim for taking the pictures or sharing them
with someone (who were trusted and part of a confidential relationship)
58
and victims may
think to feel enough humiliated to take this risk. Still, Citron and Franks rightly consider
that victims dont have deep pockets: because the state would bring the action, victims
would not be worried of the costs of a lawsuit. The publicity of the action might be another
obstacle to criminal prosecutions. If on one hand its easier to proceed under a pseudonym
in criminal cases than civil cases
59
, on another the press cannot be forced to not report
victims names. The Supreme Court has stroke down in more than one case legislations

57
Kashmir Hill, The Cyber Prosecutor Sending Nude-Photo Thieves To Prison, July 31 2014, Forbes
http://www.forbes.com/sites/kashmirhill/2014/07/31/federal-prosecutor-nude-photo-hackers/
58
See Mary Ann Franks, Adventures in Victim Blaming: Revenge Porn Edition, February 1, 2013 in Concurring Opinions
replying to Professor Eric Goldman post titled What Should We Do About Revenge Porn Sites Like Texxxan?;
Goldman argues that http://www.forbes.com/sites/ericgoldman/2013/01/28/what-should-we-do-about-revenge-
porn-sites-like-texxxan/; Franks argues that according to Prof. Goldman, includes taking explicit photos of
themselves that they never share with anyone.[...] If we follow victim-blaming logic, women and girls should not
engage in consensual sex acts of any kind or even get undressed in any place where a camera could possibly be
concealed, which today of course means anywhere. And given that rape can also happen anywhere and be filmed,
women and girls by this logic should simply never enter any space where any male might ever be. This is the end game
of victim-blaming. See the full post at http://www.concurringopinions.com/archives/2013/02/adventures-in-victim-
blaming-revenge-porn-edition.html
59
Franks and Citron argue Generally, courts disfavor pseudonymous litigation because it is assumed to interfere with
the transparency of the judicial process, to deny a defendants constitutional right to confront his or her accuser, and
to encourage frivolous claims from being asserted by those whose names and reputations would not be on the line.
presumption that often works against plaintiffs asserting privacy invasions.. See Doe v. Smith, 429 F.3d 706, 710 (7th
Cir. 2005) (The public has an interest in knowing what the judicial system is doing, an interest frustrated when any
part of litigation is conducted in secret.).
trying to forbid newspapers to publish victims names on First Amendment Grounds
60
,
consequently denying damages to the victims whose names were in the press.
The biggest problem is that even in the case revenge porn were a crime the pictures could
continue to circulate with no legal grounds to sue the websites. Unless the Congress made
revenge porn a federal crime (which is the direction revenge porn advocates are working
towards) the CDA Section 230 would still protect the provider.
Professor Eric Goldman, one of the most well-known opponents of anti-revenge porn
legislation argues Whereas having nude/sexual depictions of a person used to be a rarity,
for future generations (and perhaps current ones) such depictions are going to be normal
perhaps even ubiquitous. When we reach that point, there will be substantially less
scandal or taint associated with the unauthorized posting of nude/sexual depictions.
After all, many other folks will have made similar depictions. The public dissemination of
such depictions might still violate the privacy expectations of the depicted individuals, but
it will not be seen as unusual. []This points the way to the long-term solution to the
revenge porn problem: we as a society will necessarily have to adjust our social norms
about the dissemination of nude or sexual depictions to reflect their ubiquity.
He adds that Still, for individuals who would prefer not to be a revenge porn victim or
otherwise have intimate depictions of themselves publicly disclosed, the advice will be
simple: dont take nude photos or videos. Even if you never share them with anyone,
these depictions seem to have a surprising capacity to leak out (for example, there are
numerous stories of IT technicians or criminal hackers obtaining photos and videos). If you
decide to take nude photos or videos, never share them with anyone else. Effectively,
when you do, you are gambling that person will not betray your trust for the rest of their
lives. The reality is that most people arent that trustworthy; or even if they are, its hard
to know that in advance. This argument has been heavily criticized by Franks
61
as a form
of victim blaming. Franks cross-post to Goldmans article will be not reported in this

60
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Florida Star v. B. J. F., 491 U.S. 524 (1989); Suzanne M. Leone,
Protecting Rape Victims' Identities: Balance Between the Right to Privacy and the First Amendment, 27 New Eng. L.
Rev. 883, Spring 1993
61
Id. Note 52
article, however the argument is easily defeated because in different cases victims ignored
to be pictured or filmed
62
. Concerning CDA Section 230 Goldman is a strenuous advocate.
He argues that the general nature of Section 230 not surprising leaves some activity
unaddressed but that provision has permitted the Internet to flourish and grow; then he
argues, I dont trust my powers to decide whats too distasteful or isntand I trust any
regulators ability to evaluate content even less.
63


Who opposes to revenge porn criminalization sometimes brings up first amendment
claims.
The first amendment generally forbids any action which would abide the free speech of
the exercise of thereof
64
. The United States have interpreted this provision extremely
broadly forbidding any legislation trying to regulate speech - or better- confining any
regulation within strict requirements. If challenged before the Supreme Court, any
revenge porn legislation would be subjected to the so called strict scrutiny test. Strict
scrutiny is applied when speech regulation is content based: when lawmakers
disapprove a particular type of speech and therefore try to limit it
65
. American law and
culture- looks with particular disfavour to speech regulation. For many reasons that cannot
be explained in this paper, the United States believes that democracy primary protects
personal freedom of which freedom of speech is the first expression . The Constituents
Fathers wanted to grant that speech would include vehement, caustic, and sometimes
unpleasantly sharp attacks
66
.
Strict scrutiny requires the law to be a compelling governmental interest. Even if the courts
have never clearly defined how to determine if an interest is compelling, the concept
generally refers to something necessary or crucial, as opposed to something merely

62
Id.
63
Eric Goldman, What Should We Do About Revenge Porn Sites Like Texxxan?, Forbes, January, 28, 2013
64
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
65
Korematsu v. United States, 323 U.S. 214 (1944)
66
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
preferred. Examples include national security, preserving the lives of multiple individuals,
and not violating explicit constitutional protections. The law or policy must be narrowly
tailored to achieve that goal or interest. If the government action is overbroad or fails to
address essential aspects of the compelling interest, then the rule is not considered
narrowly tailored. The law or policy must be the least restrictive means for achieving that
interest, in other words there cannot be a less restrictive way to effectively achieve the
compelling government interest. The test will be met even if there is another method that
is equally the least restrictive.
Citron and Franks argue that First Amendment doctrine holds that not all forms of speech
regulation are subject to strict scrutiny. Certain categories of speech can be regulated due
to their propensity to bring about serious harms and only slight contributions to First
Amendment values including true threats, speech integral to criminal conduct, defamation,
obscenity, and imminent and likely incitement of violence
67
.
They argue that in different cases the Supreme Court limited the right to free speech and
press with privacy
68
. They also cite professor Eugene Volokh, noted first amendment
scholar, who considers sexually intimate images of individuals disclosed without consent
belonging to the category of obscenity, which the Supreme Court has determined does
not receive First Amendment protection
69
.
Some decisions which involved primary cyberstalking but also revenge porn has been
tested under First Amendment grounds. The First Circuit rejected first amendment
challenges considering defendant action was speech that is integral to criminal conduct
The Eighth Circuit rejected a similar First Amendment challenge in United States v. Petrovic

67
See N.Y. Times Co., 376 U.S. at 269. The Court has articulated complex constitutional standards for some of these
categories like defamation, erecting a matrix of fault and damage rules based on whether a plaintiff is a public or
private figure. Gertz v. Robert Welch, Inc., 418 U.S. 323, 34649 (1974). As free speech scholar Rodney Smolla puts it,
the well-defined categories of speech falling outside the First Amendments coverage entail elaborate standards of
review, and some constitutional protection is indeed afforded to certain types of libelous and obscene speech. Rodney
A. Smolla, Categories, Tiers of Review, and the Roiling Sea of Free Speech Doctrine and Principle: A Methodological
Critique of United States v. Alvarez, 76 ALB. L. REV. 499, 50102 (2013).
68
See, e.g., Michaels v. Internet Entmt Grp., 5 F. Supp. 2d 823 (C.D. Cal. 1998)
69
Miller v. California, 413 U.S. 15 (1973)
There, the defendant had created a website with links to images of his ex-wife "in the nude
or engaging in sex acts" with him. The defendant also sent sexually explicit pictures of his
ex-wife to her work, her boss, and her relatives. The court held that these
"communications," which resulted in the defendant's conviction, were integral to criminal
conduct and unprotected.
States currently criminalizing revenge porn are Alaska, Arizona, California, Colorado,
Georgia, Maryland, New Jersey, Idaho, Pennsylvania, Utah, Virginia, and Wisconsin.
The legislative outline vary state by state. New Jersey is currently the states with the
broadest statue, California has the narrowest legislation. New Jersey was the first state to
criminalize revenge porn prohibiting the non-consensual observation, recording, or
disclosure of sexually explicit images. The crime carries a prison sentence ranging from
three to five years. As Citron and Franks report although the law has been around for
almost a decade, it has been invoked in only a few cases which is indicative first of all of
the actual use of this provision by prosecutors and secondly of the weaken deterrence of
criminal law when is not enforced.
Californias newly adopted revenge porn bill has the narrowest coverage of all. The
California bill requires that the defendant intend to cause the victim serious emotional
distress. It demands that the state prove that victims have suffered serious emotional
distress and it is only considered a misdemeanour in California punishable by up to six
months in prison and a $1,000.

Final thoughts about the advocacy to criminalize revenge porn.

Disclosing private moments to the vast public of the Internet without the other part
consent is undoubtedly a despicable behaviour that needs to find adequate relief in court.
This article does not oppose the criminalization of revenge porn because posting on the
internet intimate pictures of ex-partners is normally made with a criminal intent the
intent of harassing an making the partner feeling ashamed. This type of conduct, normally
directed towards woman, is driven by the same mens rea that goes along with many forms
of sexual violence: the intent to humiliate the partner in order to control her.
Indeed criminalization advocates rise significant and convincing arguments, nevertheless
they partially fail - for this article- justifying why practically speaking victims would be
more protected or relieved if revenge porn would be criminalized. If offenders conduct
might be surely targeted as criminal in other words, it is enough serious and harmful to
be considered a crime - the research to develop this article has found that the courts have
generally condemned the same type of behaviour on already-existent grounds in criminal
and civil law. This type of lawsuits/prosecutions normally fail when there is a lack of
evidence
70
. As this article explains, bringing sufficient evidences is not always easy for the
victims. On the contrary, because in the United States criminal action is discretional,
criminal law may be useless because state attorneys might deem the case too hard to
prosecute. Statues as the one approved in California might look much less appealing for a
victim than a potential reward in damages considering that a woman has been recently
rewarded with half million dollars
71
. Indeed, criminal and civil actions can be
simultaneously pursued but speaking practically on the victims side not necessarily
criminal law might be more satisfactory.
That being said, its true that a public action would help those with little economic
opportunity
72
to start a lawsuit but it really depends on the policy of prosecutors.
The strongest argument is the deterrent effect which however depends on how the law de
facto is applied. In other words, the deterrence depends on the level of enforcement and
the level of success before the courts rather than the criminalization per se
73
. Considering
again the California revenge porn statue, does it have more deterrence than the threats of
being asked damages for thousand dollars as some juries have been awarded?

70
See in this article Tort law
71
A Texan woman is reported have won 500K dollars over a revenge porn lawsuits, Revenge Porn Victim Awarded
$500K in Civil Case, IAPP Daily Dashboard, Mar 3, 2014, https://privacyassociation.org/news/a/revenge-porn-victim-
awarded-500k-in-civil-case/
72
The Economist reports that these types of lawsuits can cost up to 100.000 dollars. See Misery merchants, July 5,
2014, http://www.economist.com/news/international/21606307-how-should-online-publication-explicit-images-
without-their-subjects-consent-be
73
Id. 54
That being said the criminalizing revenge porn may not grant relief to victims because
websites would still remained immunized. Criminalization might be a further disincentive
for revenge porn websites that might be less encouraged to engage in activities which
might lead them the be under scrutiny of law enforcement- however this is merely
theoretical. Revenge porn websites like the one run by Hunter Moore resisted much longer
after they attracted attention on the contrary they made more profit. Only acting on the
mechanisms of the Section 230 would grant not only more prospect of avoiding seeing
images reappearing somewhere else but also a real deterrent effect that indeed
somebody would consider a chilling effect upon speech. That would mean changing the
Communication Decency Act Section 230 what many have been advocating for years
74
-
or making revenge porn a federal crime.

74
The Communication Decency Act Section 230 has been variously criticized. Many scholars have discussed CDA
Section 230 and Courts interpretation see: Centre of Law and Information Fordham University, Joel R. Reidenberg
Research Team Stanley D. & Nikki Waxberg Chair Founding Director, Fordham CLIP Jamela Debelak Executive Director,
Fordham CLIP Jordan Kovnot Deans Fellow, Fordham CLIP Tiffany Miao Project Fellow, Fordham CLIP, Policy Section
230 of the Communications Decency Act: A Survey of the Legal Literature and Reform Proposals April 25, 2012, note
187, Colby Ferris, Communication Indecency: Why the Communication Decency Act, and the Judicial Interpretation of
it, Has Led to a Lawless Internet in the Area of Defamation, 14 BARRY L. REV. 123 (Spring 2010); Freiwald, supra note
12; Emily K. Fritts, Internet Libel and the Communications Decency Act: How the Courts Erroneously Interpreted
Congressional Intent With Regard To Liability of Internet Service Providers, 93 KY. L.J. 765 (2004-2005); Todd G.
Hartman, The Marketplace vs. The Ideas: First Amendment Challenges to Internet Commerce, 12 HARV. J.L. & TECH.
419 (Winter 1999); James P. Jenal, When Is a User Not a User? Finding the Proper Role for Republication Liability on
the Internet, 24 LOY. L.A. ENT. L. REV. 453 (2004); Andrea L. Julian, Freedom of Libel: How an Expansive Interpretation
of 47 U.S.C. 230 Affects the Defamation Victim in the Ninth Circuit, 40 IDAHO L. REV. 509 (2004); Michelle J. Kane,
Blumenthal v. Drudge, 14 BERKELEY TECH. L.J. 483 (1999); Nancy S. Kim, Imposing Tort Liability on Websites for
Cyberharassment, YALE L. J. POCKET PART, Vol. 118, p. 115 (2008) available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1507463. This scholarship contends that courts have made it
unnecessarily and inappropriately difficult to hold ISPs accountable for content when they have in some way
participated in the creation of that content. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1507463; Jae Hong
Lee, Batzel v. Smith & Barrret v. Rosenthal: Defamation Liability for Third-Party Content on the Internet, 19 BERKELEY
TECH. L.J. 469 (2004); David Lukmire, Can the Courts Tame the Communications Decency Act?: The Reverberations of
Zeran v. America Online, 66 N.Y.U. ANN. SURV. AM. L. 371 (2010); Joshua M. Masur, A Most Uncommon Carrier:
Online Service Provider Immunity Against Defamation Claims in Blumenthal v. Drudge, 40 JURIMETRICS J. 217 (Winter
2000); Brian C. McManus, Rethinking Defamation Liability for Internet Service Providers, 35 SUFFOLK U. L. REV. 647
(2001); Olivera Medenica, The Immutable Tort of Cyber-Defamation, 11 No. 7 J. INTERNET L. 3 (Jan 2008); Devon
The change of CDA Section 230 is politically controversial and therefore extremely
improbable in the short run. First of all Section 230 concerns an indirect form of speech
regulation and considering the cultural status that the First Amendment covers in the
United States it would be a topic subjected to disputes
75
. Whether ISPs lobbies can
negotiate in the Congress and theyre economically strong, privacy advocates represents a
small community. The other option the federal criminalization of revenge porn - does not
look like to be around the corner neither since the criminalization at the state level seems
not that easy and however not that severe as the California proposal show.
Yet, if it is true that the severity of the offense is sufficient to consider it a crime
nonetheless there are not sufficient evidences that make it a crime would effectively help
the victims or would avoid it to happen.

Conclusion

The legal problem of revenge porn characterizes the United States for the particular
features of the American legislation. However, revenge porn highlights once again the
difficult balance between the free and open Internet and who ends up trapped in this
freedom. Fostering innovation on the Internet and permit the flourishing of new services
may clash with the instances of individuals who see violated their right to not be defamed,
distressed or harassed. The ISPs liability is a disputed topic because of the very true nature
of these services: ISPs and websites usually intend to provide the vastest content possible
and surely the richest opportunities for the users who benefit all. The Internet as we know
and that we love largely works because ISPs and websites decide to give users the

Ishii Peterson, Child Pornography on the Internet: The Effect of Section 230 of the Communications Decency Act of
1996 on Tort Recovery for Victims Against Internet Service Providers, 24 U. HAW. L. REV. 763 (Summer 2002);
Rachel Seaton, All Claims are Not Created Equal: Challenging the Breadth of Immunity Granted By the
Communications Decency Act, 6 SETON HALL CIRCUIT REV. 355 (Spring 2010).
75
Richard A. Epstein , Privacy, Publication, and the First Amendment: The Dangers of First Amendment
Exceptionalism, Stanford Law Review, Vol. 52, No. 5, Symposium: Cyberspace and Privacy: A New Legal Paradigm?
(May, 2000), pp. 1003-1047;

opportunity to share thoughts, material, ideas. Nevertheless the law should also find the
way to protect those who, with no fault, suffer injustice and the current interpretation of
Section 230 has been revealed to be an obstacle. Remove the damaging content is hard
when intermediaries are not liable. They have no interest to comply with victims requests
because theyre not legally accountable: therefore the unwanted material keep staying
online
76
. Undoubtedly, uploaders behaviour has to be seriously addressed and
responsibilities need to be directed against those who act with the clear intent to hurt.
Notwithstanding, in practice, the absence of collaboration from the providers side means,
for those whose reputation is damaged, no actual relief. The criminalization of such a type
of conduct seems to leave some issues open, no answers to the permanence of the
unlawful content nor a disincentive for those platforms built to ruin other peoples life
77
.

76
Barnes v. Yahoo!, Inc., 570 F. 3d 1096 (D. Or. Nov. 8, 2005)
77
Like the overcited IsAnyOneUp ,Chearteville, Homewrekler also; see reverences in this article about these websites.