Mcle Self-study Article

• Jurisdiction: California,United States,Federal
• Citation: Vol. 40 No. 4
• Publication year: 2015
• Author: THOMAS A. WARD
• topic: Criminal Law,Technology

MCLE Self-Study Article

THOMAS A. WARD

KARIN PETERKA

ETHICS AND CYBER EXPLOITATION: PRIVACY AND COPYRIGHT LAW CONSIDERATIONS

(See end of this article for information on receiving 1.0 hour MCLE self-study, including 1.0 hour Ethics credit.)

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The proliferation of photographs and videos being shared in digital format via mobile phone technology and online has resulted in a rapid rise in cyber exploitation. Cyber exploitation is the non-consensual distribution or publication of intimate photos or videos online.¹ Such intimate photos or videos are often distributed or published online by revenge seekers and hackers. Examples of cyber exploitation include the following scenarios:

-A California resident takes an intimate "selfie" photo (photo of herself) on her smartphone and sends it via text to her significant other who also resides in California. She breaks up with her significant other who then posts her intimate selfie photo online without her permission. This type of cyber exploitation is often referred to as "revenge porn."
-A California resident's smartphone is hacked and a private and intimate video he took of his significant other that is stored on his smartphone is stolen and posted online by a hacker without his or his significant other's permission.

Many states, with California leading the way, are cracking down on cyber exploitation and have recently enacted laws finding criminal and civil liability involving cyber exploitation. The first successful criminal conviction under California's October 2013 revenge porn law² was in December 2014, when a man in Los Angeles was sentenced to one year in jail for posting intimate photos of his ex-girl-friend on her employer's Facebook page.³

And in the first criminal prosecution in the country of an operator of a cyber exploitation website, a man in San Diego was convicted in April 2015 of identity theft and extortion by a California court for running his cyber exploitation (aka revenge porn) website "UGotPosted.com," which posted more than 10,000 explicit photos of women received from third parties, and then using another website "ChangeMyReputation.com" to charge the victims to remove the photos.⁴ He was sentenced to eighteen years in prison.⁵

And in a high profile case relating to revenge porn, a New York jury found rap artist 50 Cent, whose legal name is Curtis James Jackson III, liable for invasion of privacy and intentional infliction of emotional distress.⁶ He was ordered to pay five million dollars in compensatory damages and an additional two million dollars in punitive damages to a woman featured in an explicit videotape that Mr. Jackson acquired from her ex-boyfriend, and then altered and posted online without her permission, as part of a feud with a rival rap artist.⁷

In California, victims of cyber exploitation may fight back with recently enacted criminal and privacy laws, and in some cases, copyright law. California lawyers who may not typically practice in one of the areas of criminal, privacy, or copyright, might be asked for advice on what to do, and thus, should keep in mind the ethics of giving advice in a matter in which a lawyer does not have the skill ordinarily required.⁸ This article reviews some updates to California privacy law and instances where copyright law may be used to combat cyber exploitation. It is not intended to cover all aspects of the law in these areas, or all remedies available, but instead is intended to inform practitioners that the subject of cyber exploitation involves several areas of the law that may need to be considered.

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UPDATE TO CALIFORNIA PRIVACY LAW AND DISORDERLY CONDUCT STATUTE

Criminal Law Changes

California criminal privacy law and the California disorderly conduct statutes have recently been updated to provide better protection for victims of cyber exploitation, including revenge porn. California privacy law was updated in 2013 and 2015 to specifically cover revenge porn and is codified in California Penal Code § 647(j)(4).⁹ On October 1, 2013, Senate Bill 255 ("SB 255"), which made revenge porn a crime, took effect. This law falls under California criminal invasion of privacy law and makes revenge porn a criminal misdemeanor under California's disorderly conduct statute. For a first offense, the penalties, if convicted, include up to six months in a county jail, a fine of up to $1,000, or both.

Another update to Penal Code § 647(j)(4) makes it illegal to distribute explicit images of someone online without his or her consent. On July 1, 2015, Senate Bill 1255 ("SB 1255"), a new amendment to Penal Code § 647(j)(4), went into effect to expand the law to include "selfies." Thus, the law makes revenge porn a crime regardless of who created the image.

In addition, in fall 2015, California Senate Bill 676 ("SB 676") and California Assembly Bill 1310 ("AB 1310")...