Franks says those provisions of the Decency Act are often misapplied: "Many people, including police officers and judges, overestimate how much immunity websites have against criminal charges," she says. But law enforcement often lacks "technological expertise and resources" to chase down those responsible for a site.
MyEx.com includes a link to what appears to be a third-party website — a so-called "reputation site" that offered to remove the photos for $500. But Jennifer sees little reason to pay. "There's no guarantee that [the photos will] come down," she says.
When City Paper sent questions to MyEx.com, it got a response from a correspondent identifying himself as "Adam," who said he was not the site's owner but worked in "customer support." "No one knows who the owner is, only communicates through email," he said.
"We are just a third-party website. We don't judge posters or the posted," Adam said. "We have removed over 200 posts of alleged pictures of minors that have been requested to be removed by law agency [sic] around world."
What about the reputation site's promises to remove the images? Adam maintained that MyEx.com didn't own it, or any other reputation site. "The one that is on their [sic] now is just smarter then [sic] other ones. They pay us an advertising fee to have their link on site."
He did not answer a follow-up question, however, about whether paying the site's $500 fee would guarantee the removal of the photo from MyEx.com.
Even if the photos were taken down, Franks says, it wouldn't necessarily be the end of Jennifer's problems. "What guarantee do you have that [the imagery] won't pop up somewhere else?" she asks. "Besides, the way things are now, what incentive does any website have to ever take these pictures down?"
Franks and other advocates say the best way to combat revenge porn is to go after the people who post it, rather than the websites that host it. But prosecutions are difficult even in states that do have anti-revenge-porn laws.
Perhaps the best-known is California's October 2013 law, which is similar to Schwank's measure. "California's law highlighted the need for anti-revenge-porn laws," says Franks. "But there are major problems with California's law, and unfortunately in some ways, it is being used as a model in other states."
Franks points to two weaknesses: First, the law doesn't cover "selfies" that a victim sends to someone else — only to images actually taken by the person who posts them. Secondly, the photos must be posted "with the intent to cause serious emotional distress," with the result that the "depicted person suffers serious emotional distress."
To date, Franks says there have been no arrests under the law. And she doubts there ever will be.
"The current version has many loopholes and classifies the conduct as a misdemeanor," she says. "Investigating this conduct almost inevitably requires seizing and searching personal devices such as computers and cell phones, and it's very difficult for law enforcement to obtain warrants to do this when the crime alleged is so minor."
Franks says the bill Schwank has proposed in Pennsylvania is a step up from the California law, because it includes selfies on the list of images that cannot be shared online. But as in California, Schwank's bill regards the crime as a misdemeanor, and requires proving an "intent to harass, annoy or alarm the person depicted."
That requirement, Franks says, "is a major problem."
"You have to prove that at the time these photos were posted that the person meant to hurt someone else," Franks says. "The purveyors of revenge porn often say, ‘We're not trying to hurt anybody, we're just trying to make a buck.' If the person's intention is to make some money or brag about their sexual conquests, then they're off the hook."
But whatever the motive, "the posting of this material causes the same damage to the victim," Franks says. "I have to keep reminding people that this is sexual abuse. We don't ask a perpetrator whether they thought the victim would enjoy it. The issue is: ‘Did I have consent?'"
The bill also would not block other information often seen on these sites: Facebook profiles, Twitter accounts, street addresses, email addresses, places of business and phone numbers. Some websites — including the one where Jennifer's photos are displayed — include submissions that offer no nude or sexual content at all: just photos, identifying information and a slew of insults. (One purported Western Pennsylvania woman, for example, appears on a revenge site fully clothed — alongside the poster's complaint that the woman wouldn't have sex with him or "help me out with nudes.")
Schwank says she is aware of such concerns: "I know the bill is not perfect," she says, "but we are taking steps to address this problem and craft a law that can be effective to protect Pennsylvanians."
And the law can't be effective if it gets tossed out in court.
In other states, the American Civil Liberties Union has taken issue with revenge-porn statutes out of a concern they overly limit speech. The ACLU's Pennsylvania chapter initially had similar misgivings here. But it has taken a neutral position on Schwank's bill — and the "intent" clause is a big reason, says Andy Hoover, ACLU-PA's legislative director.
"Generally, images are expressions of free speech, and if they are going to be criminalized, then it has to be done in a very narrow way," Hoover explains. "I think Sen. Schwank's bill does that. The images in question have to be sent with the intention that they are to remain private and the person who distributes the image has to have the intent to harm the person."
