Comments on Michigan SB 524 and 525, the “Revenge Porn” Bills

Today we testified on Michigan SB 524 and 525, which criminalizes “revenge porn” in the State of Michigan. Attorney John Di Giacomo made the following comments:

My name is John Di Giacomo and I am an Internet and intellectual property attorney and partner with Revision Legal. My office is located in downtown Traverse City, Michigan and our firm regularly aids revenge porn victims in the removal of photographs and other tortious content from the Internet.

It is exciting to see the Michigan Senate take on this issue and I hope that other state legislatures will follow your lead. So-called revenge porn is a very difficult problem to solve because of the nature of Internet technology: information, including the explicit photos that we are discussing today, is often autonomously spread through aggregators, search engines, and the like, which makes removal both legally and technically complex.

Despite the good intentions of this bill, I foresee that it, in its current form, will be challenged on First Amendment grounds. The intersection of criminal law and the First Amendment is a notoriously complex area of law, and for good reason: it is important to tread lightly when criminalizing speech. Additionally, I fear that our police departments, which are very good but very busy, may lack both the technical and personnel resources necessary to enforce this bill. Though this bill is written with good intentions, enforcement is a real concern.

While I appreciate the Senate’s efforts, I hope that the Judiciary Committee will consider a more robust civil statute that provides attorneys with an incentive, perhaps a fee shifting provision, to take these cases. We must often turn away clients because they lack the ability to pay. A private civil solution would have the following benefits:

(1) attorneys in our practice area regularly handle these cases and understand the complex intersection of technology and law;

(2) a civil solution removes the state as an actor and, therefore, avoids many First Amendment issues and the uncertainty of protracted litigation that may ultimately end up invalidating this bill; and

(3) there is precedent for a civil solution to these types of problems; the Michigan Consumer Protection Act is a very successful piece of legislation that created an incentive for private enforcement, specifically, attorneys fees.

I hope that you will seriously consider a more robust civil solution to this problem, and, should you choose to do so, we would be happy to work with the Senate to do so. Thank you.