California has engaged in a contentious civil liberties debate over its nearly-first-in-the-nation revenge porn law, but when it came time to putting the first revenge porn website operator behind bars, prosecutors used already existing laws.

Kevin Bollaert was found guilty of identity theft and extortion—27 felony counts in San Diego County Superior Court—for posting sexually explicit photographs of women (often stolen or submitted by former companions) on his website, YouGotPosted.com, and charging to have them removed.

The site housed 10,000 photographs. The San Diego resident reportedly charged up to $350 per person for removal and made $10,000 during a 10-month period ending September 2013. California Attorney General Kamala Harris prefers calling it “cyber exploitation” but almost nobody does, comparatively. A Google search for “cyber exploitation” turns up 14,000 hits compared to 1.87 million for “revenge porn.”   

Bollaert’s attorney, Emily Rose Weber, argued that her client conducted a lawful business, albeit sleazy, and was exercising his First Amendment right of free speech. “The question is whether what is distasteful and immoral is illegal,” she told the jury.

Deputy California Attorney General Tawnya Austin said it was “21^st century blackmail.” The jury agreed with her. Bollaert could get 20 years in prison at his sentencing April 3.

When California passed Senate Bill 255 in October 2013, it became the second state to ban online posts or other distributions of “intimate” photos or videos, without a person’s consent. Violation is a misdemeanor. The American Civil Liberties Union (ACLU) opposed the legislation and its objections are cited in an analysis of the bill by state Senate staffers:

“The posting of otherwise lawful speech or images even if offensive or emotionally distressing is constitutionally protected. The speech must constitute a true threat or violate another otherwise lawful criminal law, such as stalking or harassment statute, in order to be made illegal. The provisions of this bill do not meet that standard.”

In Bollaert’s case, extortion and identity theft were sufficient. Casey E. Meyering, who allegedly operated another revenge porn site, WinByState.com, was arrested a year ago and extradited from Oklahoma. He is scheduled to go on trial later this month for apparently facilitating the posting of some 400 photos of California women.

It wasn’t that long ago that the operator of the premier revenge porn site nationally, Hunter Moore, was unencumbered by legal issues and giving interviews to Anderson Cooper in 2011 and Dr. Drew Pinsky. Dr. Drew called him “the Internet’s most hated man” in April 2012, talking to Moore after he shut down his site, IsAnyoneUp.com, under intense public scrutiny.

Moore was arrested by the FBI in January 2014. He was indicted on 18 felony counts, including charges of conspiracy, unauthorized access to a computer and identity theft. He was suspected of going the extra mile to obtain content by conspiring to steal photos. Moore linked his photos to the Facebook or Twitter accounts of his subjects, motivating them to pay for removal or, in the case of one victim, to stab him with a pen.

He survived the attack and is out on bail, living at his parents’ Sacramento home, under the condition he not use the Internet. So, speculation is his triumphant return to Twitter a couple weeks ago is probably just a case of someone hacking his dormant account.  

At least 17 states now have laws addressing revenge porn. Most of them are narrowly drawn but Arizona’s is broad enough to encompass images that are not now considered to be objectionable. It bans the publication of any nude photos that are published without the subject’s consent.

The ACLU sued and a U.S. District Court judge put it on hold while Arizona lawmakers work on language that doesn’t ban a history professor from showing his class the iconic “Napalm Girl” photograph from the Vietnam War, running naked in horror. A newspaper could be prosecuted for running explicit photos from Abu Ghraib.

Under the law, an educator could be in trouble for running a photo of a breastfeeding woman from the Internet. Libraries would be liable for the images their patrons access.  

While the states sort out the difference between revenge porn and historically important photographs, the Federal Trade Commission (FTC) has taken its first federal civil action by getting Craig Brittain of Colorado to shut down his site, IsAnybodyDown.com, which mimicked Moore’s. No financial penalty was assessed.

–Ken Broder

To Learn More:

California Man Faces 20 Years in Prison after “Revenge Porn” Conviction (by Marty Graham, Reuters)

“Revenge Porn” Web Site Creator Convicted; He Victimized Thousands of Women (by Sarah Kaplan, Washington Post)

Attorney General Kamala D. Harris Issues Statement on Cyber-Exploitation Verdict (California Attorney General’s Office)

The Decision That Could Finally Kill the Revenge-Porn Business (by Danielle Citron and Woodrow Hartzog, The Atlantic)

FTC Settles Case Against “Revenge Porn” Site Operator (by Anne Flaherty, Associated Press)

California Sends Its First Revenge Porn Perp to Jail (by Ken Broder, AllGov California)