Arizona may Pass a Law Against Revenge Porn

Pro Juventute Aufklärungskampagne ‚Sexting’ Themenbild_05 by Pro Juventute from Flickr (Creative Commons License)

Pro Juventute Aufklärungskampagne ‚Sexting’ Themenbild_05 by Pro Juventute from Flickr (Creative Commons License)

The Arizona legislature is considering a bill that would make “revenge porn” a felony. Revenge porn is the term commonly used when a person posts nude, often sexually explicit, photos or videos of another person on the internet without consent, likely after a bad break up.

House Bill 2515 would prohibit a “person from knowingly disclosing, displaying, distributing, publishing, advertising or offering a photograph, videotape or film or digital recording or other reproduction of a person engaged in a sexual act or in a state of nudity without that person’s written consent.”

If this bill becomes a law as it’s written, violating this law would be a Class 5 Felony (punishable by at least 6 months’ imprisonment and up to $150,000 fine), unless the person in the images is recognizable, then it would be a Class 4 Felony (punishable by at least 1 year in jail and up to $150,000 fine).

Arizona already has a law on the books about cyberharassment. This law is broadly written and requires the perpetrator to intend “to terrify, intimidate, threaten or harass a specific person or persons.” This new revenge porn law doesn’t require a particular intent, just the knowledge that the perpetrator knew they were posting sexually explicit material without the subject’s consent. It only looks at their behavior, not their goal regarding the alleged victim.

This bill has a long way to go before it becomes a law, and it has some opponents. Rep. Eddie Farnsworth is reported to oppose the law because people in the photos and videos often send the original images of themselves via “sexting” and they may be partially responsible for the continued distribution of the images.

“Once you send it out, I think there’s some difficulty in claiming that you have a right to privacy,” Farnsworth said. “You sent it. It’s on the entire system.”

What do you think about this bill – Should states have specific laws about revenge porn? Do you think the punishment should be up to a year in jail if the person in the photos or video can be identified?

I constantly remind people, “Think before you post.” Even if this law passes, victims’ lives could still be destroyed by revenge porn. You don’t know who is going to see it or where it might end up. If you can’t handle the responsibility of taking intimate photos  or videos, don’t do it.

If you want to chat more about revenge porn and this proposed law, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It has an entire chapter dedicated to invasion of privacy. You can connected with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

The Legal Side of Revenge Porn

Untitled by seanmcgrath from Flickr (Creative Commons License)

Untitled by seanmcgrath from Flickr (Creative Commons License)

One of the downsides of technology is most people have the ability to create intimate photos and videos with their smartphones which is now leading to an increase in “revenge porn.” For those of you who don’t know, revenge porn is created when a person takes the photos or videos from their prior romantic relationship and posts them on the internet to humiliate their ex-partner. I think posting revenge porn is juvenile and disrespectful, but there are also legal implications in these situations.

Copyright Infringement
If you take an intimate photo of yourself and send it to your partner, you own the copyright in that image and therefore have the exclusive right to copy and distribute it. If your ex posts it on a website or shares it with someone without your permission, they are likely committing copyright infringement.  If you find a “selfie” photo of yourself on the internet that was posted without your consent, you may be able to get it removed using the Digital Millennium Copyright Act by sending a takedown notice.

Cyberharassment
Arizona has state laws against cyberharassment and against harassing someone via electronic communications, both of which are punishable by up to six months in jail and up to $2,500 fine. Other states have similar laws. If the person who posted the photos or videos did it with the intent to harass or harm you, the poster may have violated one or both of these laws.

Invasion of Privacy and other Civil Violations
Some people who are victims of a revenge porn situation are interested in a civil lawsuit. They may want to consult a lawyer to determine if the person who posted the pictures or videos likely violated your state’s laws related to invasion of privacy, infliction of emotional distress, and, if they’re making money off of you, the commercialization of your image. These are state law issues so you’d have to have a lawyer compare the facts of your case against your state’s laws.

Challenges in these Cases
One of the challenges in these cases is proving that your ex was the person who posted the photos or videos. The IP address will tell us from where they were posted so if they posted from home, that’s a good indicator that your ex did it. However, some people try to cover their tracks by using public Wi-Fi but there are other ways to gather evidence about the person who posted your intimate photos on the internet to discern their identity. There is always a chance that your ex isn’t the perpetrator but someone he/she shared your photos with (which could be another case against your ex)or a person who got access to your ex’s phone or computer without consent.

Another challenge in these cases is for people pursuing a civil lawsuit, you may win the case by you might not be able to collect if the defendant doesn’t have any money. The defendant doesn’t have any money, you might have a hard time finding a lawyer who will take your case unless you pay for your legal fees.

If you want to watch me jump on my soapbox about revenge porn, I made a video about it earlier this year.

If you are in a revenge porn situation, talk with the police and a lawyer who can discuss all your options. If you want more information about what you can/can’t post on the internet, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Don’t Post Stupid Stuff Online

Gestures by Tuppus from Flickr

When I was a kid, I had a shirt that said “think” across the chest and “act” across the back. There was tiny print around the bottom hem that had a series of statements that said “think before you ________.” The shirt’s message was, “Think before you act.” If the company made this shirt today, they should modify the design to say, “Think before you post.”

Think B4 U Post by Mister Norris from Flickr

It blows my mind how much stupid shit people post on the internet, and most of the time, you can tell they do it because they think it’s funny in the moment and they don’t think it all the way through. Before you post anything on the internet, regardless of what it is and where you’re putting it, ask yourself 2 questions:

  1. What’s the worst thing that could happen?
  2. How many ways could this blow up in my face?

We all know how fast an internet post can spread like wildfire. Look at this post by a girl who lost her hat that she got from her mother who died of cancer at the Phoenix airport. I’m sure tens of thousands if not hundreds of thousands of people have seen it. I hope she gets it back. This post went viral because her story touched people’s hearts, but other posts go viral because they’re so offensive.

Always beware of the court of public opinion. You can look like a massive ass on the internet without doing anything illegal. If you do that, be ready for your reputation to be tarnished. That offensive post could easily become the number one result when someone Googles your name, which will hurt your professional and personal lives.

And if you make an offer in a post that is believable, don’t be shocked if someone accepts it. If you post on Facebook, “I lost my phone in a cab in NYC. I’ll give $10K to whoever returns it.” You better get your checkbook out when you get it back or you might find yourself in court for breach of contract.

If you post something on the internet and it garners strong negative reactions, there isn’t much you can do if you don’t like it unless they cross the line into the realms of invasion of privacy or defamation. The only thing you can really do at that point is damage control.

Carter Law Firm’s Postcards

If you post something online and regret it after the fact, deleting it may not be enough to save you. Once you put something out there, you can’t control how many times it will be downloaded, shared, re-posted, and re-tweeted. It only takes a few seconds to create a post, but you may be living with the consequences forever.

The take away lesson: Think before your post…really think. Don’t put anything online that you wouldn’t put on the front page of the newspaper.

You can connect with me via TwitterGoogle+Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Woman Attacks Camera Man on Camelback

Cholla Trail Landmark - Camelback Mountain by Dru Bloomfield - At Home in Scottsdale

Cholla Trail Landmark – Camelback Mountain by Dru Bloomfield – At Home in Scottsdale

Last week Pete Kosednar was hiking on Camelback Mountain when he saw a woman on the trail who didn’t have her dog on a leash. He turned on his video camera and asked her is she knew that her dog was supposed to be leashed. She didn’t appreciate being filmed and reacted by swearing at him and hitting him. Check out the video for yourself.

Was Pete Kosednar wrong to film this woman? No! She was in a public place where she had no expectation of privacy. As long as he wasn’t filming her to commercialize her image or filming her in a way that constituted any type of harassment, there’s nothing she could do to stop him from filming her. And now the video is on YouTube where everyone can see her behaving badly.

I understand that privacy is a hot-button topic for a lot of people. It is for me. However, you have no expectation of privacy for anything you do in view of the public so there’s nothing you can do to stop someone from filming you in most situations. Pete could probably strap a video camera to his head and tape most of his day-to-day activities without risk of penalty.

There are some places where you can expect to not be filmed like public bathrooms, tanning beds,  locker rooms, and retail businesses that don’t allow you to take pictures or shoot video in the store. This woman was on Cholla Trail on Camelback Mountain. There are no special restrictions on shooting photos on video there.

It also amuses me when people make a scene about being filmed in public. We have surveillance cameras everywhere – in the stores and shopping centers, on courthouses, monitoring freeway traffic, etc. It’s funny when people accept those cameras as a part of every day life but freak out when someone turns on the camera in their phone when they’re standing on the sidewalk or in a public park.

The take-away lesson here is if you’re going to behave badly in public, whether you’re breaking the law, violating a social norm, or making an ass of yourself, don’t be surprised when you find out that someone videotaped it and posted it online.

Feel free to connect with me via TwitterGoogle+Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.
Check out my ebook on Amazon – The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed

Hat tips to Phoenix New Times for running the story and Jeff Moriarty for telling me about it.

Texas Schools Tracking Students with RFID Chips

The bare RFID Reader pcb by CabFabLab

This seems pretty messed up – policies have been enacted at John Jay High School and Anson Jones Middle School in San Antonio, Texas that require students to always carry their student ID cards that have radio-frequency identification (RFID) chips embedded in them. These chips are used for attendance with the goal of reducing truancy. The school hopes the chips will keep kids from skipping school which will result in the school district getting significantly more funding.

The problem is these chips broadcast the holder’s location 24-7. Anyone with an RFID reader can track them. According to my source, Heather Fazio of Texans for Accountable Government easily filed a Freedom of Information Act and was given the names and addresses of every student in the school district. It only cost her $30. That means if she has an RFID reader, she has all the information she would need to tract a student if she was so inclined if the person had their student ID with them. That’s frightening!

Some students are standing up to this invasion of privacy and refusing to carry their student IDs or only carrying their old ID cards that don’t have RFID chips. They said they’ve been tormented by instructors, barred from school functions, and not allowed into the cafeteria or library.

I don’t have a problem with requiring students to carry a student ID when they are on school property and I like the idea that schools could take attendance by having students swipe a card at the classroom door. I take issue with the school and others being able to track students when they are outside the school walls and on their own time. It’s a privacy issue and a safety issue.

The police need a warrant to put a GPS on your car to track you. Why should a school be able to mandate that students be trackable 24-7?

I agree that these students have no expectation of privacy when they are in public and they are required to be in school by law, but that doesn’t give the school permission to make them trackable wherever they go.

The policy in question requires students to carry their cards in their pockets or around their necks. If I were a student in one of these schools, I’d try to disable the RFID chip by punching a hole through it and putting it on a string around my neck. I’d be complying with the letter of the law while protecting my privacy.

Feel free to connect with me via TwitterGoogle+Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.
Check out my ebook on Amazon – The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed

Hat tip to Sheila Dee for telling me about this story.

Can I Publish an Email in a Blog Post?

Letter of Intent by Nick Ares, Ruth Carter, Carter Law Firm

Letter of Intent by Nick Ares

My friend in California recently contacted me and said that he received an email from a professional association he belong to and that he wanted to share it in a blog post along with his response. As an Arizona attorney, I can’t provide legal advice to California clients, but it made me think about what potential legal repercussions I could face if I wanted to publish an email in a blog.

Defamation
Defamation usually involves making a false statement about a person or entity to a third party that damages their reputation. Publishing a blog post is definitely a communication to a third party, but there’s no false statement if you publish the email as it was written and if your response contains your true reaction to the message.

Public Disclosure of Private Facts
Public disclosure of private facts is an invasion of privacy claim where you tell the truth about a person but you release information that a reasonable person would expect you to keep confidential and they would be highly offended if you shared it. This is the type of claim you could face if you break up with your significant other and release the sex tape you made during your relationship.

In terms of publishing an email I received, I’d review the message and the association’s rules to see if communications need to be regarded as confidential. If not, I probably wouldn’t hesitate to republish it in a blog because there’s probably nothing in it that would be high offensive to share with others.

False Light
False light is a claim where you’re accused to telling the truth about someone but you manipulate it in a way that suggests something that is false. If I were going to republish an email, I’d probably publish the entire message to avoid being accused to manipulating the message to make the person look worse than they are.

These legal claims are all state law claims. If I publish an email written to me by a person or on behalf of an organization and they get pissed at me, they’re going to sue me where they live. I’d have to check the exact verbiage of these laws in that state, not just my home state. I prefer  to not set myself up to be sued across the country and have to go there to defend myself.

EDIT: My lawyer friend reminded me of one more claim you have to think about if you’re going to publish an email in a blog post: Copyright Infringement.
The person who wrote the email likely has copyright rights in their verbiage, include the right to decide where it’s reproduced and displayed. Most people don’t register their copyrights with the U.S. Copyright Office, so if you wait three months to publish your blog post, they can only come after you for their actual damages, which will probably be lower than statutory damages. In some cases, they could still get a decent settlement.

And as always, if you’re going to push the envelope with your blog posts, it’s easier and cheaper to consult a lawyer (like me!) in advance than to have to hire one after you’ve been sued and you have to defend yourself.

Feel free to connect with me via TwitterGoogle+Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

When Can Someone Post Photos Of You Online?

My Camera by Paul Reynolds

I’ve had a few people ask me about the legalities of posting pictures of other people online. I thought I’d tackle the most common issue with photographs – whether you have a reasonable expectation of privacy. I’m not going to get into commercializing a person’s image or misrepresenting a person. I’m only addressing whether someone can post a picture that they took of you on their Facebook page, blog, Flickr, etc.

No Pants Light Rail Ride 2012 by Devon Christopher Adams

Pictures of You in Public
You have no expectation of privacy in anything you do in public. This includes where you go and what you do while you’re there. For example, I just got an adorable basset hound named Rosie. We take walks every day. I have no expectation of privacy regarding where we walk, what I’m wearing when I walk her, or how I react when she pulls on the leash. That’s all in plain view for everyone to see. Anyone can take a picture of us and post it online, preferably with a caption that says, “Sassy lady and her awesome dog,” and there’s nothing I can do about it (as long as they’re not misrepresenting me or commercializing my image without my consent).

If you’re in a public place and someone snaps a picture of you while you’re falling down drunk, getting arrested, picking your nose, scowling at a crying baby, or not wearing pants, there’s probably nothing you can do if that picture shows up online somewhere.

The exception to this rule is you have an expectation of privacy in places like public bathroom stalls, changing rooms, tanning salons, and doctor’s offices that may require you to be partially or completely undressed.

Pictures of You in Private Venues
When pictures are taken of you at a private event or in someone’s private home, you have to ask whether you had an expectation of privacy in each particular situation. If you attend a party where there are no rules regarding photos and everyone has their cameras out, you have no expectation of privacy if someone takes a photo of you and puts it in their online album.

Some events come with ground rules regarding photos that could create an expectation of privacy. I had a friend in college who had a Decorate Your Nipples theme party where everyone had to decorate their chest. Some people put decorations on their shirts and some people opted to decorate their skin. The rule for that party was that no cameras were allowed except during the designated picture time. At picture time, all the photos were limited to one room. If you didn’t want any photographic documentation of your being at that party, you had to go to the no-camera room.

There may be activities where there are no specified rules about photographs, but where the nature of the event or activity gives you an expectation of privacy. For example, if you and your partner make a sex tape or take intimate pictures of each other, there’s an inherent expectation that no one beside you two would see them. If you break up, your partner can’t post the pictures online and protect themselves by saying that you never agreed to keep them private.

When it comes to the question, “Can I post pictures of other people online?,” the answer is always, “It depends.” My general rule of thumb is “Don’t do anything in public that you wouldn’t put on the front page of the paper.” When it comes to photographs, the same rule generally applies because you might end up in a situation where you had an expectation of privacy but someone posted a picture of you online that they shouldn’t have. You might have a case against the jerk who posed it, but you still have to deal with the possibility that a lot of people saw a photo of you that they should have never seen.

Call Your Representative to Oppose CISPA

Laptop Stickers by YayAdrian

The U.S. House of Representatives could be voting this Friday on the Cyber Intelligence Sharing and Protection Act (CISPA). It’s important that you call your representatives today and let them know that you oppose CISPA, and they should too.

CISPA is the government’s latest attempt to invade our privacy. They say the law’s purpose is to prevent and counteract cyberattacks. This law will let private companies and the government ignore every privacy law and share your personal information. All they need to have is a “good faith” belief that they’re doing it for cybersecurity purposes, which sounds like they’re allowed to manipulate the way they describe a situation  to manufacture a good faith belief.

The proposed law has had a few amendments aimed at protecting our civil liberties, but I’m not convinced. The amendments will still let agencies like the National Security Agency have “unfettered access to information about Americans’ internet activities and allow those agencies to use that information for virtually any purpose.”

CISPA - The Solution is the Problem by DonkeyHotey

The Electronic Frontier Foundation has a great resource that gives you your representative’s phone number and a script you can use when you call them to urge them to vote against CISPA. I called my representative, Ben Quayle, and I was shocked to learn that he’s a co-sponsor of the bill. I told his office that he should stay out of my computer (and my vagina for that matter).

Here’s your to-do list:

The government will always try to overstep the limits and invade our privacy. It’s our job, as the people who hired them, to keep them in check and tell them what to do.

8 Questions to Ask Before Posting a Blog

No I'm Blogging This by Andre Charland

No I'm Blogging This by Andre Charland

I taught a class this week at Gangplank, an awesome collaborative co-working space in Chandler, on some of the legalities of blogging. It was part of Gangplank Academy. As I was going through my notes in preparation of this class, it occurred to me that there are some critical questions every blogger should ask themselves before publishing a new blog post.

1. Is all the information in your blog verifiable?

2. Is every statement that isn’t verifiable indisputable?
Statements like “My knee hurts like it’s going to rain tomorrow” and “My favorite color is blue” may not be verifiable, but there’s no one who can say those statements aren’t true.

3. Do you accuse anyone of committing a crime?
It’s one thing to say, “My neighbor gives me the creeps,” but you might get sued if you say, “In my opinion, my neighbor’s a pedophile.”

4. Are you sharing any information that you learned in confidence?
When you break up with your partner, don’t write a blog post sharing all the personal information you learned during the relationship like their weird fetishes and habits.

5. Are any of your statements misrepresentations or half-truths?

6. Do any of your statements insinuate anything that isn’t true?
If you write a blog about how you don’t like seeing drug users in the park and you include a photo of a person lying in the grass with their eyes closed, they may be unhappy and sue you if they’re not a drug user but were only taking a nap.

7. Is all your information public? Are you writing about a topic where your subject might have an expectation of privacy?
Your neighbor has no expectation of privacy in how he looks naked if you saw him at a public nude beach. He does if you had to creep up to his house and peer through the cracks in his closed blinds to see him.

8. Is all your information from reputable sources?
If you copy or repeat someone’s defamatory statement, even if you didn’t know it was false, you might get sued for defamation.

I love bloggers who push the envelope and sometimes it’s hard to know when you’re crossing the line. When in doubt, consult a lawyer who is a media expert and always follow my rule: “Never put anything online that you wouldn’t put on the front page of the newspaper.”

Bloggers Beware: Lessons from the Crystal Cox Case

92/365: Done? by PlayfulLibrarian

92/365: Done? by PlayfulLibrarian

This post was originally published on The Undeniable Ruth in December 2011. 

Many of us got into blogging because we like having a proverbial soapbox we can jump on to share our thoughts with the universe. The recent Crystal Cox case has made me wonder how many bloggers know the legal risk they take when they share their views.

For those of you who missed it, Crystal Cox is an “investigative blogger” in Montana who writes a blog called Bankruptcy Corruption. In one of her posts, she called Kevin Padrick, an attorney in Oregon, “a thug, a thief, and a liar.” Padrick sued Cox for defamation and won . . . $2.5 million!

The interesting thing for bloggers to note is that Cox lives and writes in Montana but she was sued in Oregon and Oregon law applied to the case.

If you write about other people, you open yourself up to the possibility of being sued for defamation or invasion of privacy. These cases are generally based on state laws. The good news is that there isn’t much variation between the laws. The bad news is that there are exceptions.

The really bad news is that the person who claims to have been injured by your blog gets to sue you in the state where they were injured, which is usually their home state. And it’s their home state law that applies. So, if you’re a blogger in Mississippi, and you write about someone in Alaska, and they sue you for defamation, you have to go to Alaska to defend yourself and hire an attorney who can defend you in Alaska. (Another lesson from the Crystal Cox case: don’t be your own attorney!)

Let’s look at the shield law, one of the laws Cox tried to use to defend herself. This is the law journalists invoke to prevent a court from forcing them to reveal an information source. There isn’t one national shield law. There are 40 different state shield laws, and some states don’t have a shield law. Cox tried to use the shield law to defend herself; and in another state, her argument may have held water. But unfortunately for her, the Oregon shield law specifically states that you can’t use the law as a defense in a civil defamation case.

Another challenge surrounding the legalities of blogging is that sometimes the laws are old, really old, as in the-internet-wasn’t-invented-when-the-law-was-written old. In a lot of these cases, the court has to decide how the laws apply to these new situations didn’t exist before we had the internet. You and the other side can propose your interpretation of the law, but there’s no guarantee that the court will accept your interpretation. And you might get really lucky and get a judge who barely knows how to turn on their computer and has no concept of what a blog is.

Someday the laws will be updated to account for the internet and blogging practices. Even when that happens, we will still have to be conscientious of the fact that each state has its own laws, and that we run the risk of being sued in any of the 50 states depending on who and what we write about.