Mary Anne Franks didn’t set out to write “revenge porn” laws. She isn’t a victim, one of the countless women who has stomached the terrifying, jaw-dropping tip that her once-intimate photos are now online for anybody to see. She certainly never intended to split people into those who stand up for exploited women and those who stand absolutely for free speech on the Internet. She was just a law professor, one who dealt in online harassment, who lent a sympathetic ear to a woman who had suffered through that hell.
But what Franks intended at the outset doesn’t matter. Revenge porn laws are cropping up all over the country, and no one is more influential in their creation than Franks.
Through a combination of tenacity, expertise, and timing, a legal draft Franks wrote in September has already been used as the basis for revenge porn legislation in Utah and Wisconsin. Twelve more states are using it to start their own drafts. And her ideas are about to go national: Congresswoman Jackie Speier (D-Calif.) plans to introduce a federal version by the end of April.
Franks’s journey into the depths of revenge porn started in 2009, born of an awful lot of time spent thinking about the Internet. An associate professor at the University of Miami School of Law, Franks wrote papers about sexual harassment online, which touched on the then-nascent topic of revenge porn. That caught the attention of Holly Jacobs, who came to Franks with the story of a bitter ex-boyfriend who plastered her naked photos on the Web.
“[Jacobs] went through all she could think of in terms of going to lawyers, going to the cops, trying to figure what she could do to get this material taken down,” Franks told the Daily Dot. “She thought there had to be some kind of law against this behavior, and was really shocked to find out there wasn’t.”
Franks protested that she was a mere academic. Her education pedigree includes a B.A. in philosophy and English from Loyola University New Orleans; Master of Philosophy and Doctor of Philosophy degrees from Oxford University, obtained through a Rhodes Scholarship; and a J.D. from Harvard Law.
More importantly, she didn’t have any legislative experience. Jacobs was undeterred.
“Do you think you can help me change the world?” she asked Franks. Soon, Franks began posting questions and drafts on the legal blogs where she was active, and got to work. By November 2013, the legislators started calling.
About that term, “revenge porn.” It really caught fire in April 2012, thanks to webmaster and self-proclaimed “villain” Hunter Moore. His now-shuttered site, Is Anyone Up, started as a spot for him and a few broken-hearted friends to toss up photos of exes, but quickly evolved into a wholesale depository that published naked photos of pretty much anybody.
Many women depicted there felt destroyed. Some begged, pleaded, and tried to sue to get their photos taken down. One stabbed Moore with a pen. He laughed all them off for almost two years, until the FBI came knocking.
Moore now sits in jail, but not for revenge porn. He’s charged with paying a hacker to steal nude photos from other people, not for running the site.
Franks, crucially, doesn’t care for the term “revenge porn,” and prefers the less catchy phrase “non-consensual pornography.” It’s an important legal distinction. When Moore first posted photos of his own exes, that was arguably revenge. But once the site was humming, the vast majority of people exposed on it were strangers to him. No one could argue that Moore put up those photos up as revenge, though many individuals depicted in photos on his site had clearly never consented to their publication.
“Hunter Moore didn’t intend to harass any of those women,” Franks said. “He even doesn’t know those women. That doesn’t mean he should be given a free pass for putting their images out online.”
Most states that have passed laws based on Franks’s draft edited in a key element, as a way to skimp around First Amendment barriers: that an online publisher must have intent to harass the person who’s depicted. Franks doesn’t want that distinction. Think about it: If you’re the person depicted naked online without permission, you don’t care whether your ex-boyfriend put the photos on his own blog or if he gave them to Hunter Moore. You just want them taken down. But if the law requires the poster to have some sort of vendetta against you, well, that alone would never stop Is Anyone Up or any of the Internet’s other revenge porn clearinghouses.
For Franks’s part, she’s confident her draft proposal only hampers an extremely narrow subset of online speech. Still, thanks to a crucial law—the 18-year-old Section 230 of the Communications Decency Act, which is thought to have fostered the creation of the Web as we know it—websites owners largely can’t be held liable for user-submitted content.
And that’s where her critics pounce. Lee Rowland, staff attorney at the ACLU, is one of them.
“What I have tried to do,” Rowland told the Daily Dot, “is focus on whether these bills criminalize the mere sharing of an image—which I think never has a snowball’s chance in hell of passing First Amendment muster—or whether it’s focused on truly malicious invaders of privacy.”
The only solution Rowland sees is not to criminalize non-consensual porn, as Franks wants to do, but “to hone in on those truly malicious invaders of privacy,” she said. “The law, at minimum, must include a requirement of malicious intent.”
Franks takes these criticisms head on, arguing that her model legislation leaves Section 230 intact, that non-consensual pornography is not protected speech. “And if revenge porn is not protected by the First Amendment,” she writes, “it is possible to criminalize it without violating the First Amendment.”
Like her critics, Franks too sees intent as a crucial aspect of well-crafted revenge porn legislation—not the intent to cause harm, but the intent to violate consent. She writes:
Only individuals who intentionally disclose a sexually explicit image of another person when a reasonable person would have known that the person did not consent to that disclosure have any chance of being prosecuted. That means if Google or Facebook or any other intermediary has no idea that a third-party user has introduced such an image into its platform, it is not liable.
Not all Franks’s detractors are as eloquent and studied as ACLU attorneys. They seem to inhabit every boulder, crack, cranny, and crevice down the slippery slope, from high-minded people who think she’s trifling with free speech—perhaps both the Internet and Americans’ most cherished right—to the ogres who find lecherous irony in the fact that a woman wants to get a type of porn off the Internet.
“One of the first threats I got, after I was starting to get publicity for the law, was, ‘I’m going to rape you and take pictures of it and put it up all over the Internet,’” Franks said.
That general theme persisted. One legal blogger who sparred with Franks titled a post, “Anybody got any selfies of LawProf Mary Anne Franks?” and rejoiced on Twitter when it became one of the top search results for her name. Others are apparently trying to get at her Facebook account—”I get all these of notifications telling me someone’s trying to change my password”—but it’s yet to be successful.
“All of us working in this field are subjected to threats, to hacking,” she says. “We all kind of knew that would be the case. And I’ve been stalked before, completely unrelated to any of this,” she adds.
Which helps explain Franks’s hobby, instructing Krav Maga—a fighting style developed by the Israel Defense Forces—when she’s not teaching law.
“It’s just about brute effectiveness. There’s no spirituality, and there’s no ten years of training to refine a skill,” she says of Krav Maga. “It’s, ‘Can you use this in a practical setting when someone’s trying to hurt you, kill you, take something from you?’ That’s where our emphasis is: practicality.”
That pragmatic philosophy may also help explain the name of her personal blog: Moving Targets.
So, what will happen with revenge porn in this country? Notably, the two states that just passed laws based on Franks’s draft, Utah and Wisconsin, are split: Utah stuck in that “intent” clause; Wisconsin didn’t. A staffer for Rep. Speier’s office confirmed that Franks’s draft was the basis of her bill, but refused to say whether “intent” would be part of the bill she releases later in this month.
Whatever happens, Franks vows to battle on.
Lead photos via Mary Anne Franks | Body photo via modomatic/Flickr (CC BY 2.0)