Hawaii recently became the ninth state – along with Arizona, Colorado, Georgia, Idaho, Maryland, Utah, Virginia, and Wisconsin – to pass a criminal revenge porn law this year.* It’s another overbroad attempt to target revenge porn, much in the same vein as Arizona’s revenge porn law.
The Hawaiian statute criminalizes the “unlawful distribution of sexual representation,” defined as follows:
A person commits the offense of unlawful distribution of sexual representation if a person, without the consent of the person represented, intentionally or knowingly reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates a representation of a nude person or of a person engaging in sexual conduct.
(a) The person intentionally or knowingly installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein, any device for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place; or
(b) The person knowingly discloses an image or video of another identifiable person either in the nude, as defined in section 712-1210, or engaging in sexual conduct, as defined in section 712-1210, without the consent of the depicted person, with intent to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships; provided that:
The full text of Hawaii’s revenge porn law, H.B. 1750, is available here. (UPDATE: An earlier version of this article discussed a previous version of HI’s proposed legislation – additional explanation is provided below. Corrections and strikethroughs reflecting the enacted bill have been added.)
There is no intent requirement. There is no harm requirement. And Hawaii’s definition of ‘nude’ is one of the broadest I’ve seen in any revenge porn law:
“‘Nude” means unclothed or in attire, including but not limited to sheer or see-through attire, so as to expose to view any portion of the pubic hair, anus, cleft of the buttocks, genitals or any portion of the female breast below the top of the areola.
That emphasis is added: as written, Hawaii’s definition of nude encompasses plumber’s butt, and wet T-shirt contests, and sideboob, which apparently occupies its own dedicated section of Huffington Post. This law would apply to almost any family vacation photograph taken on a crowded Hawaiian beach and uploaded to Facebook.
Let that sink in. (Hawaii’s revenge porn law no longer includes any definition of ‘nude.’)
And Hawaii’s intent requirement is incredibly broad. A person commits the offense of violation of privacy in the first degree if he or she discloses the image
with intent to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships.
Enough about what the law does – let’s talk about what the law doesn’t do. Many revenge porn laws, including Utah’s recently enacted H.B. 0071, provide exemptions to disclosures of nude images that shouldn’t be subject to criminalization.
Take, for example, reporting harassment in the form of unsolicited naked pictures from a boss, professor or co-worker. Utah’s law carves out an exception for the non-consensual disclosure of a nude image to law enforcement agencies, as well as distribution of an image in the course of a law enforcement investigation.
That isn’t the only exception to Utah’s revenge porn law. A doctor who displays a photograph of a patient’s breast for purposes of medical treatment – say, showing the image to her surgery team before a mastectomy – doesn’t need the patient’s consent before every display. Utah’s revenge porn law also excludes images that appear in commercial settings, or that have been voluntarily and publicly exposed by the pictured individual.
Hawaii’s revenge porn law
includes zero statutory carve-outs exempts disclosures “in the execution of a public duty or as authorized by law,” without elaboration. It also provides statutory carve outs for:
(i) . . . images or videos of the depicted person made:
(A) When the person was voluntarily nude in public or voluntarily engaging in sexual conduct in public; or
(B) Pursuant to a voluntary commercial transaction; and
(ii) Nothing in this paragraph shall be construed to impose liability on a provider of “electronic communication service” or “remote computing service” as those terms are defined in section 803-41, for an image or video disclosed through the electronic communication service or remote computing service by another person.
As I’ve flagged before, revenge porn laws often exclude an exception for what I’ve been calling “noteworthy nudity.”
Think about news coverage that includes accompanying images of Anthony Weiner’s danger zone or the US Airways tweet of an unknown woman’s landingstrip. Or, most recently, the allegations that John Schindler, a professor at the U.S. Naval War Academy, engaged in a sexually explicit conversation that included an image of his own, naked warhead. Gawker broke that today, with accompanying images. I’m not linking to it here – I don’t know what the statutory definition of
‘distributes’ or ‘transmits’ ‘discloses’ might be, since the term is not defined in Hawaii’s revenge porn statute.
As it stands, media outlets that included photographs in news coverage of these stories are engaged in the unlawful distribution of sexual representation. Under Hawaii’s revenge porn law, these journalists are may be criminals.
UPDATED: Even with the intent requirement in Hawaii’s enacted revenge porn statute, I’m not certain that all media coverage of notable nudity would be shielded. Particularly in Schindler’s case, who regularly engaged in caustic tweet-exchanges, it may be difficult to demonstrate that no journalists involved with a decision to publish accompanying photographs had the intent to cause harm to his business, reputation or personal relationships.
UPDATED: Relatedly, Section 803-41, referenced in the (ii) exemption applies to electronic communication services (“any service that provides to users thereof the ability to send or receive wire or electronic communications”) and remote computing services (“the provision to the public of computer storage or processing services by means of an electronic communication system”). As defined by Hawaiian statute, these terms differ from the interactive computer service (“any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions”) protected by Communications Decency Act Section 230. The language of the Hawaiian exemption appears to apply to services like SMS, e-mail, and cloud storage, rather than publishers of user-generated content. Although the protections of Section 230 – which is a federal law – would apply to a publisher like Gawker, the current language of the Hawaiian statute seems to be in conflict with Section 230.
Revenge porn is an ugly problem. I understand why victims and legislators are advocating for criminal laws as a possible solution. But an overbroad law that criminalizes legitimate speech is a different sort of problem, not a solution.
The Supreme Court has held that offensive, embarrassing, disgusting, and even false speech warrant protection under the First Amendment. The Court recently even granted cert in a case that will determine the extent to which threats deserve protection. Laws that regulate speech based on its content have a high constitutional hurdle to overcome. As the broadest revenge porn law I’ve seen to date, it is doubtful that Hawaii’s law comes close to clearing that hurdle.
*Three states – Alaska, California, and New Jersey – previously passed laws that apply to revenge porn.
UPDATE 6-25-14: The final version of the Hawaiian bill that Gov. Abercrombie signed into law is here. The National Conference of State Legislatures, which catalogs current and pending revenge porn legislation, linked to the previous version discussed above. Carrie Goldberg flagged the error – the NCSL has since updated its link.