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The Ashley Madison breach is causing ripples through the legal world

Ashley Madison, Texas’s New “Revenge Porn” Law, & a Box of Popcorn

The Ashley Madison breach is causing ripples through the legal worldCome September 1, 2015 Texas will join 24 other states to enact SB 1135 dubbed the “Revenge Porn Law”. The timing is coinciding, appropriately enough, with the Ashely Madison data hack and subsequent data dump that was carried out by the anonymous group going by the name Team Impact. This security breach has all the makings of a soap opera and while our first reaction may be to pop some popcorn and watch some well-known “family men” and public figures fall from grace, it also serves as a scary reminder of the perils of this new world we live in. This story holds such a strange mixture of roles; the victims are cheaters, the leakers have painted themselves to be the heroes of the internet, and Ashley–well Ashley Madison is left standing with egg all over her proverbial face. In fact—to date—no one from Ashley Madison has issued a statement regarding the data dump, aside from a smallish post on the news portion of the AM site assuring their clientele that in fact—none of their credit card information was susceptible— which I’m sure is exactly what their clients biggest, number one fear is right now (not). With two apparent suicides already potentially tied to the data dump, you don’t have to look far or scratch the surface very deep to see the human tragedy that this data breach has brought to so many disgraced spouses.

“They got what they deserved” seems to be a common sentiment expressed on various comment sections of various AM articles but this illustrates how short-sighted some people are being about the breach. Understandably there are many different levels of involvement on the site ranging from innocent curiosity—those signing on for a quick peek and a lark, all the way to outright betrayal and everything in between. Somehow though, there are those that wish to tar everyone with the same brush, which is a mistake.

As much as Ashley Madison is centered around the premise of infidelity, this incident is far more complex than just a bunch of cheating spouses and in light of all of the questions, drama, and surely more revelations and data yet to come, we wanted to look at this from the perspective of the new SB 1135 “Revenge Porn” law and what the potential correlations were. According to Section 21.16 b:
A person commits an offense if without the effective consent of the depicted person, the person intentionally discloses VISUAL material depicting another person engaged in SEXUAL CONDUCT; the visual material was obtained by the person or created under the circumstances in which the depicted person had a reasonable expectation that the visual material would remain private; the disclosure of the visual material causes harm to the depicted person; and the disclosure of the visual material reveals the identity of the depicted person in any manner: any accompanying or subsequent information or material related to the visual material; and information or material provided by a third party in response to the person’s disclosure of the visual material.

This story and it’s relation to SB 1135 raises so many questions that we don’t yet have the answers to.

Is Team Impact liable for Revenge Porn charges if they haven’t disclosed any of the photos that we know they have?

“…and the disclosure of the visual material reveals the identity of the depicted person in any manner: any accompanying or subsequent information or material related to the visual material; material provided by a third party (Ashley Madison) in response to the person’s disclosure of the visual material.”

Is Ashley Madison at risk for their negligence in allowing the site to be hacked (over the course of several years) due to their incredibly lax security—leaving approximately 37 million users vulnerable to exposure thus not even remotely practicing due diligence (despite the “trusted security award”, “100% discreet service”, and “SSL secure site” medals which, mockingly, still decorate their site today)?

“…the visual material was obtained by the person or created under the circumstances in which the depicted person had a reasonable expectation that the visual material would remain private; the disclosure of the visual material causes harm to the depicted person; and the disclosure of the visual material reveals the identity of the depicted person in any manner…”

Will Ashley Madison and parent company Avid Life be able to skirt lawsuits brought against them relying on U.S.C. code?

“It is an affirmative defense to prosecution under this section that…the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure or promotion consists of visual material provided by another person.”

These and many, many more questions will be among the fall-out from this data dump and we’ll be seeing the repercussions and litigation for years to come. This is one area where the technology is way ahead of the laws and protections that we clearly need. While Team Impact is responsible for uncovering this data, it’s also clear that Ashley Madison did little to safeguard its extensive list of users and as negligence is the law, they should have known and done better.

Though help is on the way—there is a federal bill being drawn up and Rep. Jackie Speier (D-Calif.) is in the final stages of drafting legislation. In a statement on Friday, she said U.S. laws “haven’t yet caught up with this crime.”

“Today it’s possible to ruin someone’s life with the click of a button, by publishing another person’s private images without their consent,” Speier said in a statement emailed to the Daily Dot. “Our laws haven’t yet caught up with this crime. If you’re a celebrity, you can pay a high-priced lawyer to demand that websites take your picture down, but for an average person, the current system offers almost no recourse. We already punish the unauthorized disclosure of private information like medical records and financial identifiers. Why should personal images of one’s naked body, given in confidence, be any different?” O’Hara, M. (June 21, 2015). A Federal Revenge Porn Bill is Expected Next Month [Web-based article]. Retrieved from http://www.dailydot.com/politics/federal-revenge-porn-bill/

Will this future federal law help clear up these issues? That remains to be seen, but don’t worry, John Oliver, covering this topic on his June 21, 2015 Last Week Tonight show titled Online Harassment quipped, “And also the law would carve out exceptions for the ‘bona fide public interest’ meaning that if say a public figure like Anthony Weiner texted his penis around, we could all still enjoy that story,”. Pass the popcorn please.

-Melanie Shepard

Revenge porn is a real problem, especially in today's world.

Revenge Porn, Let’s Talk

Revenge porn is a real problem, especially in today's world.We have all heard about it. We may have even seen it: that instance when a scorned lover posts nude or sexually graphic photos of their ex without permission to the internet. There is no excuse for this behavior and the Texas Legislature is seeking to protect victims of so-called “revenge porn” and hopes to deter such acts by creating both criminal and civil remedies.

Thus, Texas Legislature in this past session passed new laws providing civil and criminal penalties for this behavior. The new law goes into effect on 9/1/2015. Prior acts are not actionable under this new law.

It is time for parents to have those discussions with their kids about what amounts to violations of this law, anyone over the age of 17 is subject to consent laws, and a charge like this is no way to start out a young life.

The Relationship Privacy Act (SB 1135) provides:

“Section 98B.002: A defendant is liable, as provided by this chapter, to a person depicted in intimate visual material for damages arising from promotion of the material if the defendant knowingly or intentionally engaged in conduct that violates Section 21.16(c), Penal Code, with respect to the material.

  • Section 98B.003: A claimant who prevails in a suit under this chapter shall be awarded: actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown; court costs; and reasonable attorney’s fees. In addition to an award under Subsection (a), a claimant who prevails in a suit under this chapter may recover exemplary damages.
  • Section 98B.004: A court in which a suit is brought under this chapter, on the motion of a party, may issue a temporary restraining order or a temporary or permanent injunction to restrain and prevent the promotion of intimate visual material with respect to the person depicted in the material.
  • Section 98B.005: The cause of action created by this chapter is cumulative of any other remedy provided by common law or statute.
  • Section 98B.006: A person who engages in conduct described by section 98B.002 and is found liable of damages arising from that conduct is jointly and severally liable with any other defendant for the entire amount of damages arising from that conduct.
  • Section 98B.007: This chapter shall be liberally construed and applied to promote it’s underlying purpose to protect persons from, and provide adequate remedies to victims of, promotion of intimate visual material. This chapter does not apply to a claim brought against an interactive computer service, as defined by 47 U.S.C. Section 230, for a disclosure consisting of intimate visual material provided by another person. Chapter 21, Penal Code, is amended by adding Section 21.16 to read as follows:
    • A person commits an offense if: without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person engaged in sexual conduct; the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private; the disclosure of the visual material causes harm to the depicted person; and the disclosure of the visual material reveals the identity of the depicted person in or material related to the visual material and information or material provided by a third party in response to the person’s disclosure of the visual material. A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for publication that is owned or operated by the person. It is not a defense to prosecution under this section that the depicted person: created or consented to the creation of the visual material; or voluntarily transmitted the visual material to the actor. It is an affirmative defense to the prosecution under this section that the disclosure or promotion is made in the course of: lawful and common practices of law enforcement or medical treatment; reporting unlawful activity; or a legal proceeding, if the disclosure or promotion is permitted or required by law; the disclosure or promotion consists of visual material depicting only a voluntary exposure of sexual conduct in a public or commercial setting; or the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure or promotion consists of visual material provided by another person. An offense under this section is a Class A misdemeanor. If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.”

If you or a loved one are the victims of Revenge Porn, contact our law office. We are ready to prepare a case against the offender.

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