Impact Series

Meet the attorneys combating criminals who inflict ache by posting sexual photographs of their victims

David Bateman, attorney and co-founder of Cyber Civil Rights Legal Project (CCRLP), in his Seattle office of K&L Gates. (GeekWire / Lisa Stiffler)

A bunch of her sorority sisters were doing it, so it must have seemed like no big deal. The college women created accounts on a “sugar daddy” site where, generally speaking, men connect with women through a sort of sexual Craigslist, paying them to record and send explicit photos and videos. It provided the students with a little extra spending money.

But for one sorority member, at some point, it all went wrong.

The man receiving her videos publicly uploaded them to pornography sites. The videos proved popular, and it didn’t take long for internet trolls lurking in the shadows to identify the woman and attach her full name to the graphic images.

The woman, whom GeekWire is not identifying, was publicly humiliated and rejected by at least one potential employer who found a video when researching her online. Despite efforts to remove the graphic images, they resurface over and over.

“She is going to be there forever,” said David Bateman, an attorney with the Seattle office of K&L Gates. “She’s thinking about just changing her name.”

Every year thousands of people are victims of nonconsensual public sharing of sexual photos and videos, sometimes called “revenge porn.” Most of the victims are women, most of the perpetrators are men, often ex-partners, experts say. In many cases, the images were taken with permission or were even selfies.

Regardless, those photographed never meant for the personal images to be posted on Facebook, Twitter, porn sites or platforms like “She’s a Homewrecker.”

“It’s incredibly, intentionally cruel behavior,” said Gary Ernsdorff, supervising attorney with the Special Operations Unit in the King County Prosecutor’s Office. “Taking away someone’s privacy, their sense of security, that is a level of evil that people don’t truly understand.”

There’s a small but growing force working to fight this pernicious form of digital crime. That includes prosecutors and law enforcement, and organizations such as the Cyber Civil Rights Legal Project (CCRLP), which was formed by Bateman and his Miami-based colleague Elisa D’Amico. The effort provides free legal services to victims internationally, including the sorority sister.

Mary Anne Franks, left, president of the Cyber Civil Rights Initiative and law professor at the University of Miami School of Law, and Elisa D’Amico, co-founder of the Cyber Civil Rights Legal Project (CCRLP) and a K&L Gates attorney based in Miami. (Photo courtesy of Elisa D’Amico)

Launched six years ago, the CCRLP receives 1,000 requests a year from people desperate to erase their sexual images. About 50 K&L Gates attorneys are helping with the project, which has assisted 5,500 victims.

“It’s real-time support for victims who might not have anywhere else to turn,” said Mary Anne Franks, a law professor at the University of Miami School of Law and a leader on the issue. The women are in a crisis, she said, and need help as quickly as possible.

“There’s a constant sense of this slipping out of their control,” Franks said. “Every second an image is not being taken down, it’s doing more damage to you.”

Phase one: The takedown

The nonconsensual posting of intimate images plays out countless ways. In a somewhat typical scenario, a perpetrator posts sexually graphic images on numerous sites, often creating fake profiles or email addresses to do so. He’ll attach the victim’s name and other personal information to the images, and then share the posts with the victim and her family, friends and work colleagues.

Some victims emerge relatively unscathed from the digital assault, while others suffer serious mental and physical harm, including PTSD and weight loss or gain. Victims can lose their jobs or get kicked out of the house by angry, ashamed parents.

While the moniker “revenge porn” is often attached to the act, Ernsdorff said that the images are often more innocent than the label “porn” suggests and the motives are varied.

Gary Ernsdorff, supervising attorney with the Special Operations Unit in the King County Prosecutor’s Office. (King County Photo)

“It’s a desire to hurt somebody else for reasons that are very difficult and often not understood,” he said. Some cases appear driven by misogyny or follow classic patterns of domestic violence, with a partner exerting power and causing injuries.

Whatever the cause, the first thing victims are eager to do is a “takedown,” which is rapidly removing as much of the sexual content from the internet as possible. CCRLP attorneys aid victims by searching for the images and contacting sites to get them removed.

The Digital Millennium Copyright Act (DMCA), which was passed in 1998 to protect against the illegal online posting of copyrighted materials, including photos and videos, brings some muscle to takedowns. The act empowers a person who took an image to tell a website to remove it, or face legal action. That means the DMCA applies when the sexually explicit material was a selfie — but not if it was taken by someone else.

Forty-six states have also passed laws prohibiting nonconsensual sharing of sexual images, according to the nonprofit Cyber Civil Rights Initiative. Professor Franks, who is president of the initiative, wrote the first criminal statute on nonconsensual pornography in 2013, which became a template for other state laws. Washington passed its law addressing the issue in 2015; Ernsdorff lobbied in its favor.

Over recent years, sites including Facebook, Twitter and above-board pornography sites have become increasingly responsive when asked to remove the content, Bateman said.

But pulling down the images once isn’t always enough; trolls sometimes copy and re-post the photos and videos. A website called DMCA Defender, started by a woman whose daughter was a revenge porn victim, will for a fee monitor the web and send takedown notices to sites when images reappear. CCRLP attorneys can also ask search engines like Google to stop sharing sexual images associated with a victim’s names.

Phase two: Pursuit of perpetrators

The second phase is to go after whomever posted the material in the first place. The Cyber Civil Rights Legal Project sends cease-and-desist letters to the perpetrators, which is often enough to get them to stop, or prevent them from posting images if they’ve only threatened to so do, the attorneys said.

A victim can pursue a criminal or civil case against a perpetrator, depending on the situation, but there are significant hurdles to going court. Victims often don’t even realize that posting the intimate images is a crime. If they do decide to report it, the victim may need to go to police and share sexually explicit images with law enforcement and prosecutors who may not be prepared to handle such cases. Legal action can require a victim to undergo questioning by defense attorneys who could ask uncomfortable questions about her sexual history and behavior.

And despite the fact that it’s often clear who posted the images, the perpetrators frequently deny it. That’s when law enforcement or professionals such as the CCRLP team launch a cyber forensic investigation. As perpetrators move through the internet posting and sharing images, they leave a digital trail. Sites that provide internet service, web domains and email addresses are all collecting user information. Lawyers can subpoena records from telecom and tech companies to help reveal and prove who posted the pornography.

“We marry the forensic skills with legal subpoena power,” Bateman said. “The combo of those two is what makes cyber forensic investigations possible.”

In two headline grabbing cases, K&L Gates won multi-million dollar judgements for victims. In 2017, a wife and husband from Kent, Wash. won an $8.9 million jury award against a man who posted sexual images and harassed the wife. The year after, a California woman was awarded $6.4 million after suing an ex-boyfriend who posted revenge porn.

The figures are impressive, but the perpetrators often don’t have the money to pay them, Bateman said.

Even if there is a settlement, the injury can persist indefinitely.

“Imagine the impact of having sexually explicit photos sent to everyone on your Facebook list,” Ernsdorff said. People would rather have their car stolen or their house broken into. With those crimes, there’s a better chance to move on.

“When your photos are released, once they’re on the internet, they’re out there forever,” he said. “The internet doesn’t forgive easily.”

Long-term solutions

While state laws criminalizing the nonconsensual posting of intimate images are a good step, Franks is pushing for federal regulations. A U.S. policy would create uniform rules and definitions — and send a message.

“When Congress passes a law, it highlights that it’s a serious harm that’s done to society,” Franks said.

The Washington statute treats the crime of sharing intimate images as a gross misdemeanor; some in law enforcement would like to see that raised to a felony.

The CCRLP attorneys with K&L Gates say another important change is for people to decide the behavior is wrong and to discourage it, just as drunk driving or domestic violence have increasingly over the years become publicly shameful. They see some movement in this direction.

“Since we started this project, social norms and discussions about nonconsensual pornography have changed,” said D’Amico. But it’s clearly not enough given that requests for help “pour in every day.”

Franks and Ernsdorff are pushing for more training for law enforcement to encourage them to recognize, investigate and prosecute these cases.

“We want the message to be out there that this is not OK,” Ernsdorff said, “that this is incredibly harmful to women and other victims, and as a society, we’re going to stand up for privacy rights.”

Editor’s Note: Funding for GeekWire’s Impact Series is provided by the Singh Family Foundation in support of public service journalism. GeekWire editors and reporters operate independently and maintain full editorial control over the content.

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