Etched in Digital Stone: Nonconsensual Pornography in Kansas and a Web That Never Forgets, 0418 ALBJ, 87 J. Kan. Bar Assn 4, 40 (2018)

AuthorChristopher Teters, J.
Position87 J. Kan. Bar Assn 4, 40 (2018)

Etched in Digital Stone: Nonconsensual Pornography in Kansas and a Web That Never Forgets

87 J. Kan. Bar Assn 4, 40 (2018)

Kansas Bar Journal

April, 2018

Christopher Teters, J.

I. Introduction

You walk into the office one morning and you notice your coworkers are treating you differently A few fail to stifle a laugh, or they avoid eye contact as you walk past. Your boss asks you to come to her office. She tells you that someone found photographs of you on the Internet and management is concerned. She turns to her computer monitor and you see images; photos created two years ago when you trusted the wrong person. Your ex promised the photos would be deleted, that no one would ever see them. Your ex lied. Now your most intimate moments are exposed.

Congratulations. You’ve become the victim of “revenge porn.”

The term revenge porn sparks salacious mental images of scorned and angry lovers looking to shame or torment their former partners. However, this term can be misleading and too limiting in scope. To better capture the concept of revenge porn along with other, similar invasions of privacy, some scholars and commentators use the term “nonconsensual pornography.”1 Nonconsensual pornography, at the most general level, is the distribution of a sexually graphic depiction 2 of an individual without the individual’s consent.3 The distribution makes for splashy national headlines, with cases involving movie stars,4 Playboy models,5 Kardashians,6 and even the United States Marine Corps.7 For the victims of nonconsensual pornography, the immediate fallout can lead to sexual harassment, extreme anxiety with panic attacks, eating disorders, depression, an inability to work, physical violence and death.8 And worse yet, attempts to end the illicit distribution of the intimate images is nigh on impossible.9

To better grasp how nonconsensual pornography intersects with the law, it is important to understand that nonconsensual pornography includes depictions produced without consent, for example, through the use of hidden cameras.[10] Many states bar this type of nonconsensual pornography through statutes prohibiting voyeurism;11 however, many of these statutes are limited in scope by subject matter of the depictions, location of the victim, requirements that the offender must have a specific intent, or requirements that the offender trespass or otherwise breach a person’s private space.12

In contrast with voyeurism, revenge pornography, a subset of nonconsensual pornography, includes depictions created consensually by romantic partners for their personal use, which are later distributed without the consent of one or both of the partners.13 Modern couples, especially younger couples, are more frequently recording their intimate moments.14 In one recent study, as many as 55% of the surveyed 18- to 25-year-olds reported sending their partner a sexually suggestive photo or video.[15] The act of distribution of these consensually generated depictions by one of the partners or a third-party without the consent of everyone involved in the depiction, constitutes nonconsensual pornography. Until recently, many states did not expressly protect their citizens from this latter form of nonconsensual pornography16 Recent efforts by privacy and sexual crime victim advocates have led to 38 states and the District of Columbia adopting specific statutes that can be used to criminally prosecute individuals who distribute this second category of nonconsensual pornography17 Kansas joined in the wave of states implementing criminal nonconsensual pornography statutes in 2016.18

This article will focus on broader concepts of invasion of privacy, the act of nonconsensual distribution of consensually created sexual depictions, and the new Kansas revenge porn criminal statute. For the sake of distinguishing this specific act from the broader term of nonconsensual pornography, this article will use the term “nonconsensual distribution.” Part II of the article begins with a brief history of privacy laws, including a short examination of Kansas privacy laws including the legislative history of the new statute. The section then discusses some recent nonconsensual distribution events and prosecutions. Part III will introduce the new Kansas statutes and compare the Kansas approach to some of the surrounding states. Part IV will discuss some of the challenges of protecting individuals from the damage of nonconsensual distribution. Tat section will additionally identify some of the specific weaknesses of the Kansas statute. Finally, Part V will offer some concluding thoughts on the status of Kansas’ protections for its citizens.

II. Privacy and the Rise of “Revenge Porn”

A. The Birth of the Right of Privacy

Since the advent of the Internet, many legal,19 political,20 and media21 commentators have warned that privacy rights have substantially weakened. So before addressing new statutes criminalizing a specific invasion of privacy, a brief examination of the “right of privacy” may be helpful. As a broad legal concept, the right of privacy is relatively modern.[22] During the colonial and post-revolution periods in America, the privacy concerns of most citizens and leaders dealt only with unrestrained government intrusion into the daily lives of the populace.23 While this concern led to the adoption of the Bill of Rights, there is no mention in the United States Constitution of any clear right of privacy.24 However, early in American history, the United States Congress statutorily guaranteed a privacy right in mailings by criminalizing the invasion of a citizen’s mail.25 After the invention of the telegraph, some states further acted to protect the privacy of wire correspondence by criminalizing wiretaps and other forms of communication interference.26 In 1918, Congress passed an act prohibiting wiretapping or divulging of private information transmitted over telephone and telegraph wires.27 By 1928, forty-one states had banned wiretapping and disclosure of telephone and telegraph messages.28

In 1890, Samuel D. Warren and Louis D. Brandeis, perhaps in response to the overly curious nature of the contemporary press,29 published The Right of Privacy and articulated a privacy interest at common law distinct from the interests of property, tort, or contract.30 Part of the motivation for the article came from the invention of “instantaneous photography,” which assisted the distribution of candid photos using the press.31 Following the Warren and Brandeis article, recognition of privacy torts started growing in the early twentieth century.32 In 1960, renowned legal scholar William L. Prosser noted that over 300 cases had reviewed, interpreted, applied, and shaped Warren and Brandeis’ right of privacy.33 As a result of his analysis of the Warren and Brandeis progeny, Prosser identified four specific invasion of privacy causes of action: 1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2 Public disclosure of embarrassing private facts about the plaintiff.

3 Publicity which places the plaintiff in a false light in the public eye.

4 Appropriation, for the defendant’s advantage, of the plaintiff's name or likeness.34

Prosser’s work, like Warren and Brandeis’ before him, proved to be pivotal in crafting what most now regard as the right to privacy torts.35 Prosser later incorporated his four privacy actions into the Restatement (Second) of Torts, and as of today, a vast majority of states have adopted his articulation of at least one of the privacy actions.36

Contemporary to Prosser’s work, both the Supreme Court of the United States and Congress continued incorporating more privacy protections into American law.37 For the Supreme Court, the 1960s and 1970s were a time of discovery for a number of privacy concepts, with the landmark decisions of Griswold v. Connecticut,38 Katz v. United States,39 and Roe v. Wade.40 Congress, in the late 1960s and continuing through the modern era, implemented data privacy laws, regulating the manner in which data about individuals could be collected and distributed, for a variety of contexts.41 However, since the start of the post-Prosser privacy push, there have also been a number of statutory,42 judicial,43 and executive44 erosions to the privacy right.

B. Breach of Privacy Protections in Kansas

Similar to many of the other states, Kansas has also long protected some privacy rights. Kansas criminal law has protected the mail of its citizenry since the founding of the territory, when the territorial statutes made reading or publishing another’s mail a misdemeanor offense.[45] The Kansas Supreme Court recognized a right to privacy as early as 1918, determining that a store owner could not use a woman’s image in advertising without her permission.46 Furthermore, Kansas courts have recognized the four distinct categories of privacy torts outlined by Prosser.47 Kansas law additionally criminalizes a number of invasions of privacy besides interference with the mail, including wiretapping telephone communications, eavesdropping and voyeurism.48 Kansas’ nonconsensual distribution statute further expands this list of criminal invasions of privacy.49

The Kansas nonconsensual distribution statute began as House Bill 2501, introduced by the Kansas House of Representatives Committee on Corrections and Juvenile Justice, as a simple bill to amend the statute defining a crime committed with an electronic device.50 On February 18, 2016, Representative Sydney Carlin successfully amended the bill to add, among other changes, the nonconsensual distribution language.51 The bill passed through the House by a wide margin and went to the Kansas Senate.[52] The Kansas Senate added additional elements to the nonconsensual distribution crime.53 Thereafter, the bill passed in the Kansas Senate, and, after both bodies reconciled the differences between the two versions...

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