 Okay, hi, I'm Scott Jones. I'm acting director of electronic frontiers, Georgia and today this evening. We're going to talk about Georgia's new Anti-revenge porn law or perhaps it's a deep fakes law or perhaps it's something else We can try to figure out what it is and what it isn't So I'd like to introduce TJ my Hill our speaker for this evening Hi there, my name is TJ my Hill. I'm an attorney here in Atlanta with Owen Gleedon, Egan Jones and Sweeney Some of you probably recognize me from either my previous talks here with electronic frontiers, Georgia Or if you've seen any of the panels of dragon com that I do any of the other various talks I do on various topics around town This topic revenge porn is something I've been talking about for years. Um, I don't remember when our first panel was 2010 11 maybe 12 But we've been talking about Sorry about that. We've been talking about revenge porn since before there were revenge porn laws and at that point in time people's remedies were to try to get things taken down to try to make a copyright claim if they own to the photo to try and uh use rights of publicity or rights of privacy if their state had a good a good law to cover that To use defamation. Unfortunately, it's hard to to use defamation for something that's true and That's truly you or you're truly doing those things in the photo or the video. It's it's not really defamation Uh, it could be harassment again. Some states had better laws and others for that So it really left you at the mercy of Whatever the laws you could hodge podge together to try and remedy the situation And because of that many states including georgia started passing laws to protect its citizens And criminalize this revenge porn posting revenge porn behavior Ooh, that's a good point, uh revenge porn definition. Um, you know, it's it's it's a It's like with all obscenity, you know it when you see it Primarily, it's something that comes around when you break up when there's a jolted X somewhere in the picture But that's not the only way it arises. I mean sometimes people have gotten access to photos and used it to harm co-workers who they were jealous of people have used it You know, if they have access to personal matters, uh, you know in a variety of situations What revenge porn is in a nutshell is putting up photos or videos or other sexually explicit material Of an individual without that individual's permission and consent And as we'll see here in georgia and in many other states, it's defined as Purposely to harass or cause someone harm now, obviously You can put pictures up of your ex-boyfriend or ex-girlfriend It causes them no end of embarrassment, but there might not be that criminal intent and would that be revenge porn? I think in the broad definition and the societal definition it would Would it be revenge porn that can be criminalized? As we'll see as we go through the statute Maybe or maybe not And here's the real key each state has different statutes So each state has passed its own law and much like our laws regarding rights of privacy or rights of publicity They vary uh greatly by state in how broad they are how protective they are what gets captured So specifically to georgia because that's what we're interested in tonight georgia passed a law in 2014 and the law can be found At ocga 16 dash 11 dash 90 Now if you look at that now, you'll see obviously this current law that we're going to talk about tonight, but historically The law passed in 2014 Was very similar but had less to it What the law in 2014 Prohibited Was the same Transmission or posting of videos photos or sexually explicit material of nudity or sexually explicit material or causing the transmission or posting of nudity or sexually explicit materials That has stayed the same but has had some additions over the years which we'll talk about um So in general in 2014 If you posted or transmitted or caused someone else to post or transmit nudity or sexually explicit materials Which were not consented to by the poster All right, excuse me by the by the person in the in the pictures That would be a misdemeanor in any circumstance in all Forums in all means so in 2014 All posts that would qualify as revenge porn and again, it's a statute. So nudity is defined sexual content is sexually explicit content is just is defined It's all part of the of the statutory language but the the the Penalty was a misdemeanor across the board now if you had a second or subsequent revenge porn Conviction it could be treated as a felony But everything you did the first time was was a misdemeanor And the difference in georgia between a misdemeanor and a felony is a misdemeanor cannot have more than a year of jail time and is generally fines A felony is something that has more than a year of jail time can also have fines And and can be far in excess of a year depending on the nature of the felony So here in georgia, we had misdemeanor revenge porn Crimes and if if you wanted to prove that crime you had to prove again by the statute that the person electronically transmitted or posts or Caused to be transmitted or posted by some other person a photograph or video which depicts nudity or sexually explicit content of an adult When the transmission or posts is harassment or causes financial loss To the depicted person and serves no legitimate person purpose to the depicted person so the The crime again has to be you transmit that nudity or sexually explicit content photo or video But you have to do it in a way that Causes financial loss to the depicted person or is harassment and harassment again is defined in the statute as Meaning engaging in conduct or directed at a depicted person that is intended to cause substantial emotional harm to the depicted person So What this what this revenge porn? Act has Is an intent requirement you have to intend to Cause someone severe emotional harm now. I think that it can be fairly assumed that Someone sticking your You know your your Naked videos in your boxes your boss's inbox is intending to cause you severe financial harm or severe emotional harm Sending it to grandma and grandpa Sure for sure, but what if they just upload it to Pornhub, you know, did they intend to cause you harm or did they just Want to share a video? there's there's there's an intent requirement that You know you have to be able to prove that in order to prove That the person is guilty of this crime and you have to be able to prove that intent to a level You know beyond a reasonable doubt because it's a criminal statute So you do have an extra hurdle to overcome In pursuing a revenge porn conviction against someone Beyond just that they posted your naked photo or your sexually explicit video or whatever other content Is is being shared? it has to have that level of intent that intent to harm or Even if you can't show the intent you can show the actual harm the actual financial loss. I got fired I got My sponsor dropped for a you know a sponsor that I had Anything that has caused you a financial loss automatically becomes potentially revenge porn as well so those are the requirements under 2014 and what 2014 expressly didn't criminalize is Well, let's read it again The provisions of subjects and b of this code shall not apply to the activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses, so if Police investigators are putting up photos or sharing photos and yeah, Scott. This is actually the same in this current one So if you go down to d excuse me, e you'll see that these are the same um legitimate medical scientific or educational activities, so if I put your naked picture up because we're discussing the weird work you have on your belly button Well, then we you know wouldn't have a problem there The transmission or posting of a photograph or video that was originally made for commercial purposes And I'll get to that in a second Always get to one. Excuse me any person who transmits or posts a photograph or video depicting only himself or herself Engaged in nudity or sexually explicit conduct Not sure how that would ever get reported I don't know how you would report yourself for your own revenge porn that you posted of yourself But presumably if someone else wanted to raise a claim against you they couldn't because you Obviously consented to your own to your own sharing Um The transmission you're posting for commercial purposes we'll get to that And any person who transmits or posts a photograph or video Depicting a person voluntarily engaged in nudity or sexually explicit conduct in a public setting Or finally the transmission is made pursuant to or in anticipation of a civil action so Those last couple again if you're if you're nude in public and someone takes your video or your picture and shares your video or your picture I guess presumably there wasn't going to be any harm because you were already standing naked on the sidewalk Or you were at the nude beach or wherever you were naked in public again. I think there would be potentially some fact questions there that could be challenging to You know to quantify if you were trying to bring a claim or if they were trying to defend against a claim with that And the same is true for commercial purposes. The reason I want to single that one out is I think that one has some real potential hiccups for The the the person engaged in the commercial conduct Sharing Sharing any video or photograph of a person that was originally made for commercial purposes so again We have a Nude photo shoot a boudoir shoot You know an adult video is being made sharing those things. Well, that's what they were made for And so there's no crime in in sharing The porn video that has the porn actor and the porn actress in it when they signed their releases to be in that porn video and Showed up on set that day and acted in a porn video But what about the person who Goes to a photo shoot Goes to a group photo shoot pays, you know somebody cash for some photos and they have a handshake deal that i'm gonna take I'm gonna take pictures and you're gonna be naked and that's our deal well What happens then if you do post those thinking that you're in good faith acting As you should and within the terms of your agreement and the other person then decides that you weren't Proving that commercial transaction or that these were created for a commercial purpose Could be very difficult in that situation and I think there'd be a very Real possibility that someone thinks look I had you pay you you showed up at my studio I paid you for the day rate you we took a whole bunch of pictures of you in my studio But I don't have any evidence that says that I intended to put those up on This site or that site or the other site or that I would have the ability to use them as I saw fit or whatever other appropriate license language you would have So I think that if you want to be able to raise this defense under any of the statutes from 2014 on If you want to be able to raise the defense that you are engaged in commercial activity And that these photos or videos were created for commercial purpose That you have a pretty clear contract saying that you Not only pay them their rate Get a likeness release whatever it is you have but you have something that says We are going to take You know naked photographs. We're going to take sexually explicit videos. We are going to make whatever we're going to make And I have full rights to use this including the right to post it where I choose to post it, etc, etc I would have someone like me or some other lawyer draft up some actual language for you And have a very clear release, but I would have that release signed by all your models Or your actors or your actresses Or whoever you put in those circumstances. I just think there's a real A real potential for gray area when it comes to this commercial language, so I would be very cautious about that Being a an exclusive defense so But but again what we had in 2014 just to summarize was a law that criminalized the actual photos or videos of someone Showing their that person's nudity or or sexual explicit content That was posted with an intent A malicious intent to harm them or cause them financial loss or did cause them financial loss So that's that's where we started out and that's where we were for quite a long time In 2020 the law was amended There were some small amendments along the way if you have to look at the bill history You'll see there were other amendments along the way, but it was mostly to Change the grammar or or make make the wording a little more clear They didn't add anything substantive substantive to it in 2020. However, they added the the phrase Falsely created videographic or still image to the to the language so If you shared or transmitted posted or transmitted or caused to be posted or transmitted A photo or video Or a falsely created videographic or still image showing nudity or sexual explicit content Then you were then you were still violating the law and it was still a misdemeanor What that was put in for was because of course In 2020 in the years leading up to 2020 there was quite a bit of hubbub about deepfakes. Scott mentioned it earlier Obviously, uh, that's what this was designed to address was the public concern about deepfakes and uh and other faked videos where you didn't even get access to my Naked photos or or sexually explicit materials. You didn't hack my iphone And and send my actual naked pictures to my boss you Created a naked picture of me and sent it to my boss telling them that it was me And so that that is now captured under the cloud of the statute as of 2020 Um, again addresses deepfakes, but would cover any other Uh, you know photoshop or or other digital rendering or or alteration of photos or videos to make it appear That that I was naked or engaged in some sexually explicit conduct Now we get to why we're here tonight So in 2021 in fact, uh, it just took effect july 1 so about six weeks ago The law now creates a felony level Of revenge corn now you could always have a felony if you did two or three or four Uh, uh renditions of it. I don't remember exactly how they've raised it. We see, um Subsequent violation of the code section. So any subsequent violation of the code second Second or subsequent would potentially be treated as a felony The the all the original Level of of of criminality would only be at the misdemeanor level however as of 2021 Now if a person electronically transmits or posts in one or more transmissions or posts A photograph or video which depicts nudity or sexually explicit conduct to an adult of an adult Including a falsely created video graphic or still image When the transmission or post is harassment or causes financial loss to the depicted person Serves no legitimate purpose to the depicted person And is transmitted or posted to a website Peer-to-peer file sharing site Thumbnail gallery movie gallery post linked list live webcam web page or message board That advertises or promotes its services as showing previewing or distributing sexually explicit conduct Any of that that behavior now would be a felony any other Post or transmission via electronic means Still will be a misdemeanor What that basically means now is if you take that video photograph deepfake or photoshop still And post it to what is essentially an adult site a porn site Then you have violated this law in such a way that you are now subject to a felony and You shall be guilty of a felony and upon conviction thereof shall be punished by imprisonment of not less than one or more than five years A fine of not more than a hundred thousand dollars or both second and subsequent Go to two or five So not less than two years or more than five years And a hundred thousand dollar fine So you can still have a misdemeanor And the misdemeanor is of a high and aggravated nature. It wasn't the original one as well It have a fine of a hundred thousand dollars. I believe that was the same in the hunt in the original one as well Those haven't changed What has changed in 2021 is if you create that content on a porn site You are essentially deemed to have Caused more or greater harm to the depicted individual And you are now guilty of a felony right off the bat. There is no more misdemeanor level if you post it to any one of those sites that advertises itself as promoting or delivering adult content Again, any other transmission. So if I email it to your boss, it might still be a misdemeanor But if I put it on porn hub, like I said earlier, well now it's a felony And It's a little bit questionable. I mean again many more people are going to see it and the harm to that individual's reputation or Or their emotional health Being on a website that is Worldwide is certainly greater than just one person seeing it. But again when that one person is your boss or your grandma You know, that's kind of that's kind of hard It it's certainly a an embarrassing situation and can cause you some significant personal harm but big picture again the The issue that that you have as a result of that is that it does Create a higher level of punishment if you share it on a porn site rather than an independent or individual site And that's really the primary change here in 2021 again in 2020 we had a deep fix in 2021 We made it a felony to go to porn sites and I will tell you that as an attorney who has dealt with these kinds of cases um, it is It is not an unreasonable Situation because once someone's photo is out there Again, if you send it to your boss or your grandma It's super embarrassing, but they probably delete it And it doesn't go any further than boss or grandma When you have something that gets put on a porn site it gets downloaded it gets shared it gets uploaded other places it goes from person to person to person and You know, suddenly you're if you're trying to remove your your image from the web It's like playing whack-a-mole. You're never going to get rid of it Once it's out there it's out there and you can try to take it down off the major places or When you find one you can take more steps to try to take it there, but It's not an easy process. It's not a cheap process It's not a straightforward process to get it down off any porn site or any any type of site But it's just Even if you're successful in doing it, it's going to just show up somewhere else next Tuesday So it really is an ongoing challenge for those people who suffer that type of of of harassment and to that end That I think is why the the Georgia assembly has decided that if you're going to create a scenario where it gets that much broader distribution and that much more difficult Means of of remedy that it creates that scenario where where the person who is Engaged in that conduct and has harassed or intended to harm the person In that way gets the gets the higher level of penalty gets the gets the felony one thing that So what the act doesn't change what's not changed in 2021 is all those same provisions that are not Revenge porn so all those same law enforcement scientific medical naked in public You know litigation all those things still are exempt The commercial rule is still there that would still be exempt, but again Can't stress enough that you want to have a very clear contract to show that it was commercial But everything else remains The same and one of the things that has remained the same is that there is no private cause of action under this statute some criminal statutes Will create a right for a person to sue For a violation of that statute and the reason for that is The police are busy and and the police departments don't always go after Uh, you know every single case that walks in the door. They don't have the time for it. They don't have the inclination to do it And not every case You know justifies police Involvement or or or da involvement and to that end um You know, there's there's some civil remedy that is written into certain statutes Also, there's restitution, but it's sometimes easier to go ahead and sue and get damages if you have direct damages That's allowed for if you have civil remedies allowed here There is no civil remedy written into this into this statute. There is no civil right of action for revenge porn You can certainly go try to prosecute somebody You can bring a criminal complaint and have them charged as a criminal and get them hopefully tried and And convicted as a felon or a mist or a or of an aggravated misdemeanor If if you are are able to do so if you're not able to do so or if you want to have some private remedy to get damages or to Uh act quicker to take down the the photographs have some order that they be removed, etc You're you're kind of on your own again. So all those laws that we mentioned earlier Regarding, you know, right of privacy right of publicity harassment You know the the the things that you do have private private intentional infliction of emotional distress the things that you have a private right of action for You can bring those But you don't have any direct cause of action to say here's a here's a law. He broke this law. Therefore, he is liable to me Under that law for for the damages. I've suffered so again the big the big key I think here is that revenge porn is Is enough of a problem that states are treating it as a problem It's it's enough of an issue and and enough people are suffering as a result of People misusing their private content Um That it has justified this action in the vast majority of states How each state deals with it is different And I think the critical element for georgia is georgia is Doing its best. I I think you know, we have we have some senators here who are who are You know representatives here who are really pushing forward These bills and and trying to keep them current trying to add the things that are currently affecting People, you know, it started out as Sending your photos grandma. Okay. We got that started then it had, you know specific sites for it We could we could address that Then we had the deep fix we added deep fix now We got the the the the penalty the higher penalty for sending it to adult sites because we've discovered that that is Far more challenging to to to redress Redress Mandy being the an unintended pun here, but The the the big takeaway I think for georgia is That it still has to be intentionally harassing It has to be done with a malicious intent. It can't just be done because I think my girlfriend's real pretty i'm gonna put my girlfriend up on the on the site and see if anybody else thinks She's real pretty now if that causes your girlfriend some financial harm It could be revenge porn, but it's not revenge porn even if she's your ex-girlfriend if you did it just because Well, you thought she was pretty You you might have a hard time showing that if you post pictures of your ex-girlfriend right after you broke up, but Again, that malicious intent is required and you have to be able to prove it The the prosecuting attorney the da would have to be able to show or the solicitor if it's misdemeanor would have to be able to show That malicious intent and and that's a again a higher level of burden than just This thing happened We we can prove this thing happened. It's easy to prove this thing happened. Here's the photo or video It's on this website We know it's there We can prove that it was put up there Because there it is So that's that's easy proof The the question then becomes how hard is it to prove that it's there because of some intentional desire to cause you The depicted person that severe emotional distress or that it did in fact cause you that actual financial harm or loss That's a hard or burden. That's a higher hurdle and that's that's a much more difficult question evidentiary Evidentially so at the end of the day, george's got a pretty good law going to try to protect people Again fairly broad so it might be more protective Then then then Some people might want it to be if you're you know a content creator Again, just make sure you have very very clear commercial contracts in place But at the end of the day It's still not perfect for for victims of revenge porn Or people who are being harassed in this way because it does create that requirement of of intent being proven And it does not allow for any type of personal Suit against the perpetrator under this statute. There's no private cause of action You have to still shoe on one of those together on your own out of the other existing laws So that's pretty much the law in a nutshell Um Do we have any questions? Are there anything that you guys would like to know? Is there any specifics you guys would like to discuss? Uh, hi, can you hear me? Yes, I can hear you. Okay. So I What I heard and maybe I'm wrong about this what I've heard is that uh This um this latest uh change to the law with the sp 78 It was brought about when the the face of a of a of a representative was pasted onto a nude body and that um Was done I guess for political reasons, but also probably for harassment reasons um at this point I'm starting to feel like you know, if it's just a a private couple that's not involved in politics, then you've probably got um You probably got a good foundation for a violation of the law But if it's related to politics at some point it starts to cross into first amendment territory So where do we draw the line here as far as first amendment because you know, I I understand it's tacky and tasteless And and why they may not like it But I guess that's one of the things about targeting the legislators. They could always pass a lot of come back and get you Well, that's right You know, the part of it is is where do you draw the line right in any first amendment? Case right you can say whatever you want, but you can't yell fire in a crowded theater There's a there's a certain point where it does not become Protected speech because it's simply obscene or it's simply harassing But generally right when you've got a public figure You can say a lot of harassing things about your your personal You know state representative or or or congressman or president governor You only have to go on facebook or twitter to see that you can say all kinds of things about your public representatives And I think that will be a higher burden and I think the real Question there falls back on that intent right the the question of Did I intend to cause them severe emotional harm In a way beyond what would be protected by the high level of first amendment rights I have on a public figure Versus the You know that that's a that's a higher burden to prove because I didn't have the intent to Embarrass them with their nudity. I had the intent to Make a satire of their most recent you know position which I found to be uh Very prudish and I've taken the the extreme response of of creating this pornographic depiction of them to Contrast their extreme prudishness Yeah, I mean, I think there'd be a situation where that'd be very hard to show that it was intended to be A depiction of their nudity or or or or sexually explicit conduct for their you know for Harassment purposes right again. I mean are you trying to harass them? Of course you are you're harassing your your politician But not in a way that's intended To harm so much as intended to satire Is that long How many of these cases have been prosecuted since 2014 or what a pick of time? Do you have any idea of how many of these have been prosecuted in georgia? No, I know I know at least one has because there's big news about the first one So I had a lot of problems with this One of the problems that I would see is that I mentioned this when I was thinking about it and talking with people at another call and um So we keep using the word politician or legislator Which makes sense because they would feel that they would be targeted in this But I I feel like that it's missed in the law that many of the people that would be victims of something like this Would not be someone who would be a politician And the victim would then have to have the courage To come forward and deal with all of that and the law itself may not really address that very well because It's not it's not able to be nuanced enough for that I mean it takes someone who's to be courage to have courage to come forward And do something that they know will already have embarrassed them potentially or caused harm And having to meet that burden and all of those things that you said And so I've always fallen on the camp of harm reduction in this kind of thing because it gets so close to what censorship would be I mean because you may not really know if the person liked the deep faker if they liked What was what was there and they may have changed their mind they might have thought it was thrilling for a moment or two and then Uh, I I realize I'm I'm adding a lot of you know, I don't know if supposition is the right word But I'm I'm adding an opinion in there, but there it's nuanced when you're talking about people's Uh images that may in some way It depict a fantasy or some kind of conduct that they may have been interested in for a moment or two Or maybe they are very interested and it was a part of their exploration but Anyway, my point is like I always think about the harm reduction technique of of How a person an average person a person who is not A prominent person who knows who to call and knows how to reach you and that step of getting to someone like you Is intimidating and I don't think that the law addresses any of those things But it sounds really scary if you can get there and then prove everything you just said Well, and there's a couple of different angles of that that I want to address The the first one is you're right. This is not designed for the politicians I mean obviously to address scott's question We had to talk about that but the the the purpose of this law is You know the the the regular guy or girl on the street Who like I said just broke up with somebody just got a divorce just had a bad Uh, you know falling out with a family member And someone has access to their private content That's that's who this is intended to get and I have had plenty people reach out to me Is it by any Can it possibly be every person no not not even a small percentage. You're right I think there are a lot of people who don't know they can pursue Actions against this. I I think there are a lot of people who are embarrassed to do so But the the one Benefit to a case like this If there is a benefit to a case like this is The embarrassing thing is already out there So it's you know, it may be embarrassing to come to my office and say, hey I've had this issue arise and I need you to help me get this Photo or video taken taken offline or or help get the person who who uh, who who put it up there uh prosecuted or or Litigated against because you know when you come into my office Well, then you're going to show me the video too and and and that is going to be something That's going to be you know opposing counsel is going to see it too. Yes There are people who are going to see it but at the end of the day If it's already up there On on pornhub and millions of people are looking at it Your your worst has already come Um, so so it is a little easier I think than some other types of harassment or stalking or or or sexual crimes that that people Don't know about right. I mean if you get molested by your uncle when you're younger Uh, nobody knows about that one till you tell it and so that's a lot harder to tell Than to tell people that this video that that five million people have already seen Exists so the the benefit to the victim here is that the The harm has already occurred. Um in a public way and so that's that's the the the one I don't want to call it an upside but the one Thing that does make it easier for reporting or or or or taking legal action in a case like this Again, does everybody do it again? Certainly not. Um, is it a small percentage? I have to imagine I have no way of knowing how much this occurs But you know, I certainly know how much porn is out there and I have to imagine that on everybody knows That that uh, there's significant other put that up there or the guy they met one time put it up there The harm that comes of it Is is is you know a a different question right you you brought the issue of what happens if somebody was Originally consenting to it or originally agreed to it or just originally wasn't bothered by it. Let's take that one first If you created a deep fake of me and and you know put me on a big muscular Body and and and had me have sex with lots of very very attractive people Would I be bothered by that? I mean I might be flattered at first. Would I change my mind later? I mean if all my clients saw it maybe so there might be a an issue of of What I you know what I initially have an objection to something some third party has done that I had no participation in Yes, it could initially be flattering. I could change my mind at the end of the day The question there is the intent of the poster. Was it done with the intent of causing harm? And if you put it up there To embarrass me or to harm me And I just happened to find it very flattering or or or be into it or have some you know Public shaming kink or whatever that that was totally cool with it It doesn't matter what I think about it. It only matters what you intended to do now if I Never prosecute you for it. Obviously it would not matter at all But if I thought it was okay for a bit and then changed my mind and tried to prosecute you Still comes down to your intent And the same is true for the you know, maybe the couple who's being experimental Sorry, was there a question The same is true for the couple who was being experimental and maybe putting some stuff online Maybe being a little bit exhibitionist and then one of the couple You know, maybe decides they're not into that anymore or they break up and they want to take some revenge on the other person by saying Oh, these are all Revenge porn Well, again, that's where that intent that malicious intent comes up I think that If you had, you know, some evidence that this was done During our relationship all these videos are put up during our relationship There was something either in the content or the posts themselves or or or the account that suggested that we were Both involved in the posting of these You'd have a hard time proving that they were posted with the intent now If they were left up with intent later, is there some question about that? You know, I don't know where that goes because they weren't posted or transmitted with that attempt The fact that they're still there five years later when I didn't take them down I don't think that would qualify So, um, I think that it comes down to that intent question and and that's that's going to be the the real The real issue. I mean if somebody in the relationship was Badgered into it or if somebody in their relationship Was just getting a bunch of hidden camera photos taken and and and post it online You know, I think you could still show that intent Uh That they didn't intend to be part of that and and perhaps that the intent was there to be malicious But again, I think you run into that that situation that I brought up earlier of I didn't intend to cause my significant other any harm I just thought he or she was Really super attractive and I thought other people would appreciate it and I put it online So I think that's where that intent issue becomes Both a benefit and a burden to the to the parties involved in such litigation Do you also if I could ask one more question, do you think that because the Burden of intent, I guess you're so you're you're saying that's actually a good thing that it's it's a it's a challenge and therefore It protects I guess You know frivolous if you're if you have to meet that burden, but I'm curious the way sometimes laws are written The lawmakers have one particular idea But the way law enforcement uses it may be different and do you think that this law Is like other laws you may have seen that it would be used as kind of an add-on charge To other crimes and that that's actually how that they're going to want to try to use this because that happens When you want to build a case and you want to you know build it up this this Because this is not an easy single thing to do. So what else would they be doing with it? Well, I think that is a You know, certainly if there's related crimes going to get bundled in Let me first say do I do I think the intent is a good thing or a bad thing? It just is It's a terrible thing if you're a victim who can't prove that intent requirement on someone who Clearly intended to harm you but you just don't have the evidence of it It's a great thing if you're the person who innocently shared some photos and then got Accused of committing a crime But is it good or bad in a vacuum? It just is it is a it is a reality of many criminal statutes many criminal statutes do require some malicious intent you have to have Some malicious intent to have committed a crime. You can't really commit a crime by accident I didn't I didn't Stumble into the bank and accidentally rob it. You know, I have to have some intent to do it So the the intent the malicious intent is not an uncommon Qualifier in in in criminal cases and to that extent It is this written in a way. I would expect to see absolutely Is this written the same way it's expressed in in other statutes? Absolutely Is this something that would get bundled in with with somebody else? You know in other crimes I don't know. Um, I mean certainly I can see a scenario where someone was Being a creepy stalker and also sharing your bench porn and also harassing someone and Assaulting them and you know kicked their dog. I mean you get a terrible X You can you know throw the whole burlap sack of terrible X statutes at them And you know, is that again good bad? It's great if you actually have a terrible X It's terrible if you're being the terrible X who's using these statutes to harass your you know, your your innocent You know former partner, but the The great likelihood I think is that this statute is Much easier to address than any of those other things Stalking and harassment and and and and those kinds of things Um, it's sometimes very hard to prove that it's even happening And to get that evidence not just that it's happening in a way that would be Criminal but that it's happening at all can be very difficult again here while it might be hard to Create that question of intent and show that it was beyond a doubt revenge porn and not done for some of the other purposes that are prohibited It may have that extra hurdle, but we know for a fact that the post or transmission took place because Because there it is it's right there on on our screen. It's it's on that website or it's in that email or it's you know in that Whatever other You know file sharing system that you you've used so that's I think a much easier Baseline and I think this would be the the the statute that people would go after first in many cases rather than creating it as an add-on to Uh to other to other claims again if you're throwing the whole burlap sack of bad x statutes and somebody does this get included Sure, if you can find a picture or a video, absolutely it would but I think this is a much easier First step and and and the evidence is much clearer than in many of those other statutes That's very interesting. So you also said that it continues to provide law enforcement immunity in this is that right Only only in the investigation of cases. So, you know, if if for the purposes of Let me find the exact language The activity of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses Now again, how would that come up? I don't really know because i'm a civil attorney. I litigate civilly. I don't I don't deal with criminal litigation And and and police investigations in it You know in in general, so I mean, I can't imagine a scenario where a prosecutor is Posting to a porn site to uh to further their their their investigation or prosecute Entrapment, but again, what's the entrapment? I if I was Gay people worry about well, right, but I'm saying it the idea here is that someone is posting content And if they post content that would include the naked You know naked or sexually explicit content of a person It wouldn't be it wouldn't be revenge for if it was an investigation So we were only talking about the stuff the officer is posting or the or the prosecutor is posting It's not what I'm getting back from you And and I guess theoretically there could be a circumstance where I take the the evidentiary video and send it to my investigator send it to my You know paralegal send it to whatever You know, I can't then be prosecuted for revenge porn because I Electronically transferred that data That's the only thing I can think where we come up because if there's a scenario where an officer is Is sharing a picture of his ex-wife? That's still revenge porn he didn't do that as part of an investigation Even if he was investigating his ex-wife now, I guess again, theoretically if I had a picture of of You know of a of a suspected Prostitute in a prostitution sting and I shared that photo of the prostitute To see if other people knew her or to try to get so maybe that would be a scenario But again, I'm stretching for facts as to where that would even Where that would even apply. I think it's just there to make sure that when we Email our paralegals with a video or store the video on our on our electronic file system that we're not Being caught up in the in the revenge porn web because there's a bunch of statutes to do that Right, there's a bunch of things that that create these stupid scenarios because they're poorly written and poorly drafted and suddenly You know the university's storing the the text of Of Certain materials suddenly is you know violating hate crime laws or whatever. So there are lots of bad Badly written statutes. I think this is more of a scenario where they're trying to just avoid that Absurdity rather than there would be any situation where an investigator would put someone's naked picture up there With the intent to create some other investigation Again, I'm not police. I don't know may might do that all the time serious because it was reminding me a little bit of the way censorship works sometimes and and uh Also, I think I don't remember in the last two or three years There was the too hot for tumblr panel at the electronic frontier forums at dragon con I think you weren't on it. I don't think or were you on that one? But anyway, that that was also another issue where Uh images get uploaded like you said and uh as far as this including So you will use pornhub as an example, but I guess it wouldn't be anything any any platform right that does that and uh So that's what people do And and that would get them in trouble That's why I said entrapment like that would get them in trouble for doing what the platform is providing for them to do Um if there's that If if somebody changes their mind later or something like that, I think you've explained it But I just wanted to mention that that was also Uh a discussion I remember from a couple of years ago or something that I thought about as well in the on this topic Right exactly. You know and again, I think that it's one of those things where it all comes back to your intent at the time You put the photo or video up. That's the that's the real key in in george's Revenge porn statute now again, they're every every state treats this differently and and that's not a blanket Truism, but in george specifically Um, I think you would have to show that at the time you posted it you had that malicious intent I want one day when we don't have the pandemic to be able to Uh ask legislators that were sponsors and cosponsors Personally, you know to hear them. I would be fascinated to see what How how they describe what their intent was on doing this Well, a lot of their intent is is recorded now So, uh, when I was a student at george state, one of the things that we had to do was transcribe all of the uh all of the hearings of of the uh Uh of the georgia assembly, so you can find transcripts of of the entire Uh discussions of all bills I know the georgia The the georgia state college of law Law review keeps the peak sheets, which are which are those transcripts But again, I think a lot of them now of course in in our more modern age when I Have much more white in my beard Are all just electronically recorded and electronically, uh stored somewhere too. So you can probably find All of the debate on the bill Online and certainly again georgia state would have a copy of it in their law library I didn't know if that was I I appreciate that. I didn't realize that that was that extensive Normally, I would go back and look for a committee meeting, but I don't know How that it was um handled in the middle of the pandemic because things were so different this year Yeah And that's the thing obviously I can say what I did when I went to law school Long long ago. I don't know what they're currently doing But yes, many many moons ago when I was when I was a young law student I had to sit in the law review office and and Type out the transcript of what people were saying and in hearing and I remember because it was one of those things where I had just moved to georgia as you can tell from my accent. I am not local and I could not understand what one of the representatives from south georgia was saying I I I replayed it six times It could not understand the sentence. I had to have someone come in and translate it I wonder if now that they have done this if they will work on the education part of it because if you want to make a Law effective and you need to educate people about that and there's no more opportunities for harm reduction So that people maybe could guard themselves and getting in the situations that might become revenge porn in the first place Well, you know, and I wish that there was something of that we we have we have ended every panel talk on revenge porn with exactly that, you know, I mean Just be careful what you're putting out there. Um, you know when I was When I was a young lad And there were people who might want to have you know naked pictures of me or let me take naked pictures of them You know, we had what a polaroid You know you you could you could take a picture on a regular camera But you knew the guy down in the photo mat was going to run five copies of it So you either were okay with strangers seeing your your naked pictures or you had a polaroid And that that was one polaroid and maybe you know, somebody gave it to their buddy And maybe he gave it to his buddy and maybe you know 25 people saw it And maybe it was horribly embarrassing at those point that people were in your math class, but You know at the end of the day it was not a worldwide phenomenon You know the the the reality of digital photos is they never go away They're never forgotten and when you stick that crap on the internet, man It is there for ever and I mean that I mean no matter you try to get rid of it I can't get rid of it for you. It is it is constant whack-a-mole. So it's it's a um, you know, it's just something that I think modern society has to Either figure out that maybe polaroids were a good idea Or adjust to the fact that maybe Everybody on the planet is going to see their ass at some point or You know be pretty diligent with what you take how you take it and and who you share it with You know, keep your face out of photos. Don't show any revealing tattoos or birthmarks. Maybe just I think you're cool for saying that because those were three categories And I was like already holding my breath like how far which are you going to get there? but that's exactly how I feel about it as well because I feel like one of the things that I keep learning from some of the More interesting panels that the EFF forums have done are including this topic right now Is that our society is very behind in its understanding that we have created a world where people buy their toilet paper And book book vacations and sell homes now apparently So I hear on on an internet transaction and we do absolutely we have telehealth We do every single thing in the entire world and yet it's somehow surprising to people that sex is online And that sex online is a strange thing when it isn't a strange thing at all and um, I probably Um, I like the idea that people need to have that conversation more and think more about that because the younger people Do not have the same attitudes that older people do about their bodies and embarrassment because it is something that they have grown up seeing selfies and And that type of thing and it is a flirtation and it is a type of dating and We would be very Unwise to try to write rules for people that are 20 years old now Because their world will be very different when they're 40 and so that's why I like the harm reduction and the education part of this kind of topic Absolutely, but I mean, I think the the one thing that the education that needs to be out there is You have to remember that yeah, I really like that boy. I'm gonna send him pictures And that might be great when you really like that boy and he really likes you and everything is good and golden But once you don't like that boy anymore. He doesn't like you anymore those pictures are still there and They may end up with grandma, you know, he kind of that's that's a that's a thing that needs to be part of the conversation with with Well, every generation even grandma's sending selfies these days, you know, so it's it's a it's a a new frontier of of nudity on the on the digital platforms, but the the reality is that You have to accept the fact that if you do that Then sooner or later Someone you didn't really intend to see that is likely going to see that And are you okay with that? How do you respond to that? What's the scenario there and how do you protect yourself from that? Because again this statute Is not ideal and the other remedies are not ideal. So the way you protect yourself is Be a little more proactive and preemptively protect yourself And don't rely on trying to fix the problem You know, don't try to get the horse back in the barn An intimate an intimate threat model A threat model of intimacy Yeah, exactly Or at least get pictures back so you have mutually assured destruction that works great Does anyone else have any questions this evening? All right Um, how let's say you said that this has been going since 2014. Do you know how many built how many laws have been passed since then on this topic? In georgia or generally in georgia Well, so in georgia, I think there have been Well, you know what it probably says on the bottom of this hang on one second one two three four five five versions of this law, but again Most of those were Some of those were simply to create grammatical fixes um So the significant changes were the creation of the law in 2014 The addition of the the deepfakes and photo shops in 2020 And then the creation of the felony for porn sites in 2021. Those are the three real revisions to the law over the years Okay, well, that's all I have if anybody else has any questions Otherwise we can wrap it up go ahead Hey, um, this is kate. I do other states have similar laws or yes I'm sorry. I mean to catch up Is it most states or is it and did they work with each other or do you know if Georgia worked with any other states to kind of have similar language States don't like to work with each other. That's why that's why we have such a message of no, I I can't say uh with certainty whether um any of our legislators who who drafted this law had, you know, contact communication with anyone anywhere else Um, many states have this. Uh, I will say that um, I want to say that Most if not all I can't say all for sure because I didn't do a search to see If there were if there were laws in all states in preparation for this The panel but the the last time I had looked I mean there was only a handful of states that didn't have some law on the books But are they all similar? No No, not by any means Similar in the sense that they are addressing the same type of behavior. Yes but What they define revenge porn ads and how they Treat it and what the remedies are against it and what the repercussions are for the perpetrator vastly different from state to state again There's only a certain number of states and only a certain number ways to do it so I mean are some states similar to others of course, but um, it's not there's not a uniform law in in many In many instances, you'll have you know some Proposed uniform statement of the law and states will just adopt that uniform statement or will simply write their own uh legislation essentially copying the uniform statement like like like a uh, you know plagiarist essay writer, um, but in this case there is not one and because states were creating these um Out of whole cloth independently I mean the first the first five or six of these laws that came out were kind of all over the place on how they were treating things so Yes, most if not all states will have some law against it Um, each law is going to be very different. So your your remedy And your rights are going to vary state by state Or thanks. And is there any federal equivalent? Or is it just on the state All level You know, I don't think I think because the state's addressed it so quickly. I don't think there is any federal Hang on. Let me just do a quick. Let me just do a quick search um There are certainly You know, there are certainly federal remedies that cover Again, circling around. You know, there's there's obscenity laws and there's harassment laws and there's things like that But no, there is no um There there is no federal law for What they call non consensual pornography? um, Which is how legislators like to talk about revenge porn because revenge porn sounds so Perturative so non consensual pornography Although presumably it was consensual at some point. It just wasn't presentially be shared Thank you. Thank you Is there anything else this evening any other questions? Okay, I guess we can go ahead and wrap it up. Thank you very much, uh, tj All right guys, it's been fun. We'll be we'll be covering this topic again at dragon con. We can take, uh, take What we've learned here and uh, kind of update it When we get into dragon con Absolutely and think of think of all the questions that you have between now and then and and bring it to me at dragon con Okay, thanks very much. I'm going to go ahead and end the uh In the recording here, um, and we can hang out a little bit longer if you want to but I'm going to end the recording here, uh So, uh, once again, thanks for everyone who attended this evening