FEATURE revenge porn

Fighting Revenge Porn – A Q&A with Attorney Carrie Goldberg

***

Carrie Goldberg, the founder of a small law firm with a very big mission, was kind enough to agree to tell me about her groundbreaking work as an internet privacy and sexual consent lawyer. She helps victims of what is often called “revenge porn.” (Her other practice areas include domestic violence, sexual assault, and defamation, privacy, and harassment issues for public figures.) She’s smart, engaged, impatient for change, and extremely passionate about what she does. Here’s what she had to say when I met her at her Brooklyn office.

***

The NewsWhistle Q&A with Carrie Goldberg

***

DATE: 02/29/2016 GOLDBERG CAPTION: Portraits and environmental shots for Carrie Goldber's firm, CA Goldberg PLLC

***

Date: January 24, 2017

Hometown: Aberdeen, Washington

Current town: Brooklyn, NY

Occupation: internet privacy and sexual consent attorney

***

Thanks for taking the time to talk with me today. I was really intrigued when I saw that your law firm focused on internet abuse and sexual consent…it seems that as a niche specialty, it’s something that probably didn’t exist that long ago. Is this a case of the law trying to keep pace with technology?

I didn’t know about internet privacy as a problem until I had a problem…and I found obstacles, no one to help me. The issue wasn’t recognized. Law enforcement didn’t take it seriously. I couldn’t find a lawyer who knew anything about it. I was a lawyer at the time, and after this crisis passed, I quit my job and started this firm. It’s not just a niche, like I found some business area that was untapped, it is the meaning to my life. Since I graduated from college in 1999, I’ve been working on behalf of victims. I’ve done litigation. Now it’s all integrated into my work and it’s making 100% sense. I’m not a spiritual person but it feels like it all came together and I’m grateful for it.

It’s sounds like you’ve found a vocation, or a calling. Or what one of my friends calls it, your true purpose.

Yes.

It is a bit alarming when you look at the law and realize what a better job it does at protecting property interests than in protecting vulnerable human beings.

That’s true.

And you know, our laws are good when it comes to keeping up with technology. There are laws about hacking, there are laws about distribution. Our legislatures can keep up with technology when it comes to companies and financial interests. The lag between technology and law is a reality, but this is where you really see the power of lobbyists for commercial interests. We have laws against internet piracy…you can get in real trouble for going to a Beyonce concert and taping it. But for sexual privacy, the deepest and most disturbing personal violations…there just haven’t been powerful people pushing for it.

***

Are there other firms that do what you do?

I am not familiar with other firms that have the same sort of vision and focus. There are some firms that do provide victims rights advocacy as a service.

***

Does the criminal law address these issues in any meaningful way?

When I first started this work, two years ago, there were only 12 states that had laws about non-consensual pornography. I got involved with a group called the Cyber Civil Rights Initiative (“CCRI”) (now I’m on their board), which is a non-profit and has been the leading force towards creating model criminal legislation for states, and is working on proposed federal legislation. Now there are 33 states, as well as Washington DC, which have “revenge porn” laws.

***

Are there statutes in place in New York that adequately protect people from this sort of invasion of privacy, or do you have to be creative in applying laws to cover these circumstances?

In New York there is law to protect personal images, but it protects against commercial use only.

When I used to work for NYC government there would be issues when a celebrity’s image would be used for a promotion without permission. So if we wanted to promote cultural activities, etc., we had to make sure to get specific waivers to allow the use of those images. But that law wouldn’t be helpful to someone if the images weren’t used to sell or promote a product. So for your cases, then, it has to be suing for infliction of emotional distress?

Yes, intentional infliction of emotional distress. And that applies sometimes when an ex partner, sometimes an abusive ex, has been circulating images with that intent. But it’s not always a good solution; suing some defendants isn’t effective because the defendants don’t necessarily have any money. And if there’s no money to be had, lawyers can’t afford to take those cases on a contingency. And victims don’t always have money to pay their lawyers. Plus, lawsuits are long and can be grueling. Many victims want to sever ties with their abuser—not engage them in a new battle. Additionally, lawsuits are public, which is a problem when we’re dealing with a privacy issue that we need to have stay contained.

So there’s a lot of work to do, still.

Yes! But there has been progress. CCRI is very active, we write amicus briefs on cases, and we do research. Policies are now in place in various companies with tech platforms, and in social media companies, so we can make a complaint to Facebook or Twitter and they will take the images down. But we can’t sue the companies that provide those platforms. Federal law passed in 1996 protects those companies for being sued based on the content of their users’ posts.

And we have model legislation for civil law allowing victims to sue, and for criminal laws, which we’ve put together as a resource.

So what else can you do to advocate for your clients in these situations, if there’s no applicable criminal law and the civil law leaves so much to be desired?

Well, I now have connections with social media companies (which have policies to report and request removal of images, thanks to CCRI) so I can get in touch and get that resolved quickly. There are also dedicated revenge porn websites, not just social media. Porn is 35% of web traffic, and one company, YouPorn, owns a huge amount of it. They get hundreds of millions of hits per day. It’s really voluminous. But if I contact them, even they will remove images. It’s trickier to get a hold of device-to-device traffic if there’s not a public posting. But once the images are out there, they can end up on hundreds of different websites, or people can download them to their own computers, save them, and repost them at a later time. Technology does make for some convenient ways to harm someone irreparably.

***

Obviously there’s a strong gender component here…the stories I’ve heard on this topic and in the news have been men victimizing women. Do you ever have male clients?

We do. It happens to both genders. Typically, our male clients are older, and at the peak of their careers. For them it is sometimes blackmail, or revenge by a jilted ex mistress.

Do you see clients that have been in same sex relationships?

It comes up, but not as much.

***

Do people who commit “revenge porn” get placed on the sex offenders list? Should they? I recently read a pretty horrific article in the New Yorker about how the list was over-inclusive and therefore not very useful (as well as being extremely unfair to people placed on the list due to their actions as children). Is it also under-inclusive?

I’ve not heard of a case where this has happened. None of the existing statues call for sex offender registration. But each state has its own rules for sex offender lists.

***

What should people know about this type of case that they don’t?

People should know that it’s illegal in most of the country to share intimate images without consent. And they should know that even where it is not illegal, it is unethical, immoral, and cruel, one of the cruelest things someone can do. It’s not always done for revenge or to express anger. Sometimes it’s done as a cruel joke, or as some kind of competition. In 2014 there were many celebrity accounts hacked.

And ignorance of the law is a real thing.

Do the existing state statutes have a mens rea requirement?

About half of them have a motive requirement; an intent to harass or abuse. That’s under-inclusive. Maybe it shouldn’t be a crime if you accidentally fall on your phone and send an image…

I know several people, professionals, who managed to accidentally send LinkedIn requests to everyone in their address book. But I don’t think I know anyone who ever accidentally sent out non-consensual pornography.

I think that was part of a plot of a movie with Cameron Diaz.

I was a bit surprised at how little sympathy there was for those celebrities who were victims two years back…I kept hearing that they should have known better, shouldn’t have had those images on their phones or in the cloud.

That’s really victim blaming. And I say FUCK YOU to blaming the victim. Sometimes people don’t know the images exist, like upskirt shots and “sleep creep” pictures. Other times people have been filmed being raped. And sometimes people have had their faces photo-shopped onto pornographic images so the images aren’t real at all, but they still do harm. And I think it’s not fair to tell people they shouldn’t have nude photos. Sexy pictures are an age-old tradition. Since there’s been photography, soldiers have gone off to war carrying sexy photos of the women they loved back home. There’s nothing wrong with that.

And if someone’s house gets broken into, we don’t go around telling them that they should have had better locks. When it comes to gendered crimes, there’s a push to blame the victim. It’s like asking rape victims what they were wearing, what they were doing out alone at night. Trying to make it somehow their fault.

There’s a psychological reason for that…people want to distance themselves from victims of these crimes, and it helps to think that those people did something wrong and so of course if they do nothing wrong, these things won’t happen to them. But that’s not the reality.

***

Have you had some successes? Anything you can tell me about without violating client confidentiality?

In the two years I’ve been working in this area, there’s been a great change with social media companies taking it seriously. And the media is stepping up and talking about revenge porn. Sometimes it changes overnight. Suddenly “sextortion” is in the news.

I don’t know what that is. What is sextortion?

Sextortion is when somebody is blackmailed with the release of private humiliating information or something else of value unless they perform some sort of sex act. Often the sex act is through the use of webcams or nude images. The majority of victims are children. It’s a very patient and malicious crime as the offender grooms them and earns their trust. They are befriended online and eventually asked for a nude photo. Then that photo is used against them…a threat that it will be shared with all of their Facebook friends. And so they’re asked to turn on the webcam and touch themselves, with a promise that it won’t be filmed. And of course it is filmed.

Oh, and a young person isn’t going to say “Publish and be damned,” they’re just going to get themselves in deeper and deeper trouble.

Yes. And I could tell you details of these cases that would literally make you throw up in my office.

That’s so awful. I don’t want to hear the details. What is the end game? It is commercial child pornography?

No, it’s usually a very sick power play; it’s about control.

I can’t even imagine. I’m not a particularly vengeful person. If someone’s hurt me, I generally just want them out of my life, I don’t want to ruin their life. But revenge at least makes some sense to me. I don’t at all understand the sheer malice of wanting to do this kind of harm to someone vulnerable without some kind of personal motivation. That’s just horrific.

So, back to good news…can you tell me about any successes with your clients?

Yes. We had a big success against the NYC Department of Education recently in a case involving the rape tape of a 13 year old that went viral around her school. Our firm has the most school districts under federal Title IX investigation in the country. Most of those cases involve districts that punished the victim after she reported being sexually assaulted or exploited. We had a big settlement against a behemoth internet company. We have major cases on the horizon, one against a malicious porn company we recently filed, and another against a dating app that ignored our client’s 50+ complaints about impersonation.

I’ve also had several cases of anonymous harassers, and I’ve been able to use the little bit of information we had, going to Twitter, doing a reverse search, figuring out various aliases, taking various steps to de-anonymize it, and send cease and desist letters to home addresses using their real names. One time, I did this within 24 hours, and he was extremely apologetic, and he stopped it.

So sometimes that works. Just cut it out!

You have to know the psychology of offenders. If someone is acting out in a psychotic way and being abusive, a cease and desist letter could fuel the fire. Part of understanding the facts and making decisions is making a safety assessment for your client.

***

If you could get some laws changed, what would you suggest?

If I could wave my magic wand, I’d like to see federal legislation on non-consensual pornography. I’d like to see law that requires education on consent from an early age. Kids might learn in sex education how to put a condom on a banana, but they need to understand about consent, about violence. I’d like to see budgets for law enforcement to educate on cyber forensics, training for them to understand how to retrieve images off of devices, and how to de-anonymize offenders. Courts need more resources. States need better laws, they don’t have resources to prosecute misdemeanors. States should be able to get warrants to search devices.

***

So what are the arguments against this type of legislation? I guess if you want to post non-consensual pornographic images, you wouldn’t like having that activity made illegal, but for what other reasons are there hold-outs?

Some states are still hold-outs and there are opponents to these laws. People are worried about “innocent boys going to jail.”

Well, I don’t like to see teenagers being tried as adults; that’s why we have a juvenile justice system, as imperfect as it is.

Absolutely, they should not be jailed with the adult population, but they do have agency, and they can commit crimes, and should be held accountable.

There was also opposition to an Arizona statute by the ACLU on First Amendment grounds.

There’s a First Amendment case?

No, there hasn’t been a controlling court decision on this type of case. But the ACLU and the Attorney General’s office agreed to stipulate to withdraw the law in that case.  I don’t know why they’re so popular.

Well, they do some good work. I wouldn’t have thought they were popular, though. Don’t people love to hate the ACLU? They sue Boy Scouts and defend neo-Nazis!

Well, conservatives don’t much like the ACLU. But liberals and libertarians love them. And people are afraid of them.

But as far as calling non-consensual pornography law a violation of the First Amendment–that’s a legal conclusion that hasn’t been made. It’s not for the ACLU to determine, it is for the court system.

So besides that, are there other arguments?

Yes, there’s been an argument in Minnesota about not wanting to add anything new to the criminal law. Like criminal law is over and can’t be changed.

How odd.

Yes, I mean, when did criminal law end? Did it end in the 1900s?

If it ended in the 1800s maybe we couldn’t have vehicular homicide on the books.

It’s a very strange argument. It makes no sense to me.

***

Each state statute is different?

Yes.

Well, the states are the laboratories of democracy.

Yes, and the legislature is a sausage factory!

***

What do you think about the Hulk Hogan/Gawker/Peter Theil dispute?  There’s something slightly alarming about a billionaire using his wealth to take down a news site, but that one seems like a bit of a win for the idea of sexual privacy, doesn’t it?

The EFF [Electronic Frontier Foundation] and the ACLU sponsor lawsuits all the time. The only difference in this case was removal of the nonprofit middleman between the wealthy person/company with an agenda and the litigant.

***

Are you planning on growing your firm? Is there a lot of business out there for you?

Yes. We are growing. We are hoping we can help more people.

***

On to another more personal topic, do you have a book recommendation for us? What should everyone read?

Right now I’m reading Nancy Jo Sales’ American Girls: Social Media and the Secret Lives of Teenagers. It’s super interesting and super strange.

And I majored in English, so I love Chaucer and Tristram Shandy and all kinds of modern British literature.

***

Do you have a favorite movie?

I loved Limitless with Bradley Cooper. It’s like a movie about Adderall!

***

If you could go back in time and do one thing over, what would it be?

I would have left my job working with Holocaust survivors sooner. I did that for five and a half years, 35 hours a week with fragile, traumatized, dying people. Not what I’d recommend for someone in their 20s. Two years would have been enough for me, without suffering such a long- term emotional cost.

***

What’s the best piece of advice you’ve been given?

Sleep is for billionaires!

When I was a baby lawyer, representing low-income tenants in housing court, my friend Susan Crumiller started just a little ahead of me, I was helping her on a case. She had to do a trial, I was second seating her. It settled and we didn’t have to do it, and I was so relieved! She wasn’t. She said it would have been amazing to try that case. And it was this amazing Eureka moment for me. I realized I needed to push myself more to try new things, to leave my zone. This friend of mine started an employment law firm specializing on family issues in the workplace. And we’re about to start a joint venture focusing on sexual assault in the workplace. I’m nervous. I’m always nervous, but I believe in pushing myself. (I’m not reckless, though!)

***

What’s something most people don’t know about you?

I worked in a paper mill during college. Well, over the summers in college.

***

What’s your strangest phobia or superstition?

I am too phobic to say! I will say that I hate gentle breezes on my skin.

So you don’t like to go to the beach?

I go to the beach…but I’m always wrapped up.

It’s probably better for your skin that way. Do you have a favorite celebrity?

I’m going through a Martha Stewart phase. She’s pretty bad-ass, while trapped inside a domestic goddess life.

I think you’re pretty bad-ass. You could take on Martha Stewart any day!

And I also love Jennifer Lawrence. Her vibe. How she handles herself. She was so passionate about how wrong it is to blame to victims of the hacked photo scandals and how it is a true privacy issue.

And my celebrity crush is Steve Buscemi.

***

Last, but not least, is there anything you want to pitch, promote, or discuss?

Yes, my law firm, if you know anyone who needs my help, send them my way. And CCRI. It’s meaningful work.

***

PHOTO CREDITS

Portrait of Carrie Goldberg Courtesy of Carrie Goldberg and CA Goldberg PLLC; Lead-In Art Courtesy of patrimonio designs ltd / Shutterstock.com

***

ABOUT LAURA LaVELLE

Laura LaVelle is an attorney and writer who lives in Connecticut, in a not quite 100-year-old house, along with her husband, two daughters, and a cockatiel.

***

Laura can be contacted at laura@newswhistle.com

***

Other Q&As by Laura LaVelle

Alexi Auld, author

* Simeon Bankoff, Executive Director, Historic Districts Council

* Eric Bennett, author

Alexander Campos, Executive Director, Center for Book Arts

* Mark Cheever, Friends of Hudson River Park

* Yvonne Chu, Kimera Design

*Sarah Cox, Write A House

* Betsy Crapps, founder of Mom Prom

* Margaret Dorsey, anthropologist

* Mamady Doumbouya, Jonathan Halloran, & Robert Hornsby, founders of American Homebuilders of West Africa

* Wendy Dutwin, Limelight Media

Kinsey Dyckman, Board Member, Dyckman Farmhouse Museum

Rhonda Eleish & Edie van Breems, interior designers

* Bob Freeman, Committee on Open Government

* Alex Gruhin, co-founder of Nightcap Riot

Leslie Green Guilbault, artist, potter

* Garnet Heraman, brand strategist for Karina Dresses, serial entrepreneur

* Bill Harley, children’s entertainer and storyteller

* Meredith Sorin Horsford, Executive Director, Dyckman Farmhouse Museum

* Margaret Pritchard Houston, author and youth worker

* Camilla Huey, artist, designer

* Michelle Jenab, anti-racism activist

*Dr. Brett Jarrell & Dr. Walter Neto, founders of Biovita

* Beth Johnson, Townsend Press editor

Mahanth Joishy, founder of United States – India Monitor

* Alexandra Kennedy,  Executive Director, Eric Carle Museum of Picture Book Art

Jim Knable, playwright and musician

* Jonathan Kuhn, Director of Art & Antiquities for NYC Parks Department

* Elizabeth Larison, Director of Programs for apexart

* Ann Lawrence, Co-Founder of Pink51

* Jessica Lee, dancer, Sable Project Administrator

* Najaam Lee, artist and sickle cell advocate

*Anthony Monaghan, documentary filmmaker

*Ellie Montazeri, Tunisian towel manufacturer

* Heather-Marie Montilla, Executive Director, Pequot Library

* Yurika Nakazono, rainwear designer, Terra New York

* Jibrail Nor, drummer

* Craig Pomranz, cabaret singer, children’s book author

* Alice Quinn, Executive Director, Poetry Society of America

* Ryan Ringholz, children’s shoe designer, Plae Shoes

* Alanna Rutherford, Board Member, Andrew Glover Youth Program

* Deborah Ryan & Frank Vagnone, Historic House Anarchists

* Lawrence Schwartzwald, photographer

* Peter Sís, writer and illustrator

* Patrick Smith, author and pilot

* Juliet Sorensen, law professor

* Jeffrey Sumber, psychotherapist and author

* Rich Tafel, life coach and Swedenborgian minister

*Jonathan Todres, law professor

* Andra Tomsa, creator of SPARE app

* Maggie Topkis, mystery fiction publisher

* Carol Ward, Executive Director, Morris-Jumel Mansion

* Adamu Waziri, creator of children’s television program Bino and Fino

Ekow Yankah, law professor