Jordan Kovnot, an attorney with OlenderFeldman, LLP and adjunct professor at Fordham Law School, was quoted extensively in this article in Tablet Magazine about a new wave of Internet laws that target the perpetrators of so-called “revenge porn.”

The term “revenge porn” refers to the practice of maliciously posting sexually explicit images of an individual without their consent. The practice most commonly involves jilted former lovers who were either sent the images or actively participated in their creation (sometimes with the knowledge of the subjects, and sometimes secretly, using hidden cameras). After these relationships sour, the angry exes post the images online, often in tandem with links to the victims’ names, addresses, places of work, and social media accounts. In addition to humiliation and mental anguish, victims of revenge porn have been subsequently targeted by stalkers and extortionists who find their pictures and contact information online.

New Jersey’s invasion of privacy law prohibits making secret recordings of individuals engaged in sexual conduct. That law was used to prosecute of a Rutgers student who surreptitiously recorded his roommate, Tyler Clementi, whose subsequent suicide brought national attention to the case. Last year California passed a law that criminalizes the posting of explicit photographs of an individual without his/her consent, though it is limited to instances in which the perpetrator was also the photographer. Recently a bill was put forth in the New York State Senate to outlaw the posting of revenge porn regardless of who created the images and regardless of whether they were created in secret. Such a law would go as far as to punish the unauthorized publication of so-called “selfies” (explicit self-portraits willingly shared by the photographer) where the publication was done with an intent to cause distress.

As Kovnot discusses in the interview, the images at the heart of these violations are often taken in the context of intimate, trusting relationships. As those relationships fall apart, angry, jealous or spiteful individuals sometimes exploit those pictures and videos in order to inflict pain. Existing privacy laws often offer little help to victims, particularly in instances in which the victim willingly shared (or assisted in the creation of) the image. In those cases the victim is often deemed to have no expectation of privacy. These new laws are intended help serve as deterrents and to provide victims with new avenues for relief.

Cyber-bullying bill may threaten anonymous speech in New York

By Alice Cheng

In an attempt to combat cyber-bullying, a bill entitled the Internet Protection Act has been proposed in New York, requiring New York-based websites to “remove any comments posted on his or her website by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post.” The bill would allow those who are bullied or defamed online to take action to remove material. However, the bill only applies to anonymous comments. It would also allow business owners the right question negative online service and product reviews.

Although this statute was presumably created with good intentions, it also comes with serious First Amendment and privacy concerns. Website administrators would have the right to request that the anonymous users attach their names to the post, and must also verify the accuracy of their IP address, legal name, and home address.  This appears to clash with the conceptions most have regarding the rights to online privacy and anonymous speech.

The right to anonymous Internet speech, while not absolute, is nevertheless protected by the First Amendment. Protection is extended so long as the speaker is not involved in tortious or criminal conduct. Additionally, Section 230 of the Communications Decency Act provides immunity for Internet Service Providers (read: websites, blogs, listservs, forums, etc.) who publish information provided by others, so long as they comply with the Digital Millennium Copyright Act of 1998 (“DMCA”) and take down content that infringes the intellectual property rights of others.