We haven’t covered it much, but the Marines United scandal involves a Facebook group by that name where personal information and explicit photographs of current and former female service members were posted (generally for the purpose of bullying and harassment). An early news report about the scandal is here. A SASC website on the scandal is here, and video of a March 14, 2017, SASC hearing is available here. The story continues to develop.

The latest development came Tuesday, with the promulgation of a new Navy Regulation intended to target photo sharing like that in the Marines United group. In ALNAV 021/17 the acting SECNAV creates Article 1168, U.S. Navy Regulations, violation of which is punishable under Article 92:

1. Pending formal amendment to reference (a), this interim change adds a new article, Article 1168 to reference (a). This interim change is effective upon the release of this ALNAV.

2. Article 1168 of reference (a) is added to read as follows:

a. 1168. Nonconsensual distribution or broadcasting of an image

(1) The wrongful distribution or broadcasting of an intimate image is prohibited.

(2) The distribution or broadcasting is wrongful if the person making the distribution or broadcast does so without legal justification or excuse, knows or reasonably should know that the depicted person did not consent to the disclosure, and the intimate image is distributed or broadcast:

(a) With the intent to realize personal gain;

(b) With the intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person; or

(c) With reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced.

3. Distribution means the act of delivering to the actual or constructive possession of another, including transmission by electronic means.

4. “Broadcasting” means the act of electronically transmitting a visual image with the intent that it be viewed by a person or persons.

5. An intimate image is any visual depiction, including by electronic means, that:

a. Includes another person who is identifiable from the depiction itself or from information conveyed in connection with the depiction;

b. Depicts that person engaging in sexually explicit conduct or depicts the private area of that person; and

c. Taken under circumstances in which the person depicted had a reasonable expectation of privacy.

6. “Sexually explicit conduct” is defined in Part IV, paragraph 68b, Manual for Courts-Martial (2016 Edition).

7. “Private area” is defined in Part IV, paragraph 45c, Manual for Courts-Martial (2016 Edition).

8. In lieu of entering this interim change in reference (a), make a bold letter notation after Article 1167 of reference (a), SEE ALNAV 021/17 and file this ALNAV in front of reference (a).

9. This interim change will be incorporated into the next printed revision of reference (a).

10. Released by Sean J. Stackley, Acting Secretary of the Navy.

The new Navy Regulation 1168 suffers from three obvious flaws.

First, it’s not clear that the definitions and limitations in paragraphs 3-7 are part of the new Article 1168. Rather, the formatting of the ALNAV suggests that Article 1168 is only the prohibition in paragraph 2.a, including sub-paragraphs 2.a(1) and 2.a(2)(a-c). The additional paragraphs (including the three-part definition of intimate image in paragraph 5) seem to be merely SECNAV’s interpretation and not actually part of Article 1168.

Second, paragraph 2.a(2) of the ALNAV creates a confusing, double three-part test for when the distribution or broadcasting of an intimate image is wrongful. The act must be:

[(1)] without legal justification or excuse, [and]

[(2) done when the person] knows or reasonably should know that the depicted person did not consent to the disclosure,

and [(3)]the intimate image is distributed or broadcast:

(a) With the intent to realize personal gain; [or]

(b) With the intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person; or

(c) With reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced.

ALNAV paragraph 2.a(2) (paragraphing and emphases added). Assuming it’s even possible to prove these facts well enough to win a conviction, it’s doubtful that the average person in the Naval Service can understand the line between permissible and prohibited sharing. The personal gain provision is particularly thorny (as it is not limited in any way and could be read to include gaining merely a better reputation in a certain community).

Third, insofar as paragraphs other than paragraph 2 of the ALNAV matter, ALNAV paragraph 5.c requires that the depiction at issue be “taken under circumstances in which the person depicted had a reasonable expectation of privacy.” This is going to be remarkably difficult – if not impossible – to satisfy in the vast majority of cases that the Article is likely intended to reach. The images in the Marines United scandal, for example, were reportedly all images and pictures taken with the person’s consent or by the person specifically for the purpose of sharing with others (selfies). But just like the 2007 Ad Council campaign that warned people that “once you post your image online, you can’t take it back; anyone can see it,” images taken with consent or for the purpose of sharing can hardly be said to have been taken under circumstances involving a reasonable expectation of privacy.

30 Responses to “Flaws in the new Article 1168, U.S. Navy Regulations, regarding sharing intimate images without consent of the person depicted”

  1. Person says:

    Zach,
    I share your opinion that some of the elements will be difficult to prove, but I think your discussion on “reasonable expectation of privacy” is off base.
    If girl sends nude pic to here BF in the course of a sexting exchange or sends it via a private message in snapchat, instagram, etc. I think there is a clear inference that she had a reasonable expectation of privacy for that image not to be further distributed.
    If, on the other hand, she posted it to a public Facebook page, instagram post, etc. (e.g., where her security settings allow anyone to see it),  think there is a clear inference that there was no reasonable expectation of privacy.
    Of course, there will be cases in the margins that will be hard to prove this element, but as a whole, I think we know which ones were meant to stay between private folks and which ones were not.
    We have “reasonable” as an element in a lot of crimes which hasn’t prevented successful prosecutions.
    Plus, I don’t think it will be “impossible” as you say; get her to testify and there you have it.

  2. Zachary D Spilman says:

    You suggest, Person, that someone has a reasonable expectation of privacy in an image they share with someone else; possibly even someone they haven’t known for very long or don’t know very well.

    I’m not convinced, and I’m not aware of any precedent that supports that notion.

  3. Former TC says:

    Regarding the first concern–while not clear, I believe it’s possible that 2-7 are restating things already included in the Navy Regulations, and they are included in the ALNAV for context. 

  4. Person says:

    I suggest nothing of the sort.  I said, “If girl sends a nude pic to [her] BF.”
     
    First, that’s hardly someone she hasn’t known for very long.
     
    Second, let me ask you this: have you ever had a private conversation with your wife?  Has your wife ever sent you a picture (not a dirty picture, just any picture)?  Lots of things transmitted between couples (e.g., pictures, information, etc.) are meant to stay between them.  It doesn’t take a rocket scientist to understand the logic behind when a couple intended something to remain private.  “Reasonable expectation of privacy” hardly means not telling anyone else.  Hell, we have built in spousal privileges in our law.
     
    It might be a hard concept for lawyers, but I think it will be less difficult for the members to figure this out.

  5. P. McLaughlin says:

    It seems the REP must attach at the time of the taking of the picture, not an expectation that a shared image will not be further shared.  Even if there’s an agreement that the image not be shared, that’s a civil matter, if provable and enforceable at all.
     
    Spousal privilege is a bad analogy.  That’s just a rule of evidence.  There is no criminal sanction if a spouse shares “private conversations.”

  6. Zachary D Spilman says:

    Your comment, P. McLaughlin, suggests a meaningful difference between a reasonable expectation that an image will not be shared and a reasonable expectation of privacy regarding an image. I think there is such a difference, and that the new Article 1168 fails to appreciate it. 

  7. anon2 says:

    Person is 100% right. Marine leaders would get destroyed on the Hill and with the public if they used Zach’s REP argument.

  8. Bah Humbug says:

    True story:  Back in 2007, some of the Marines who might be caught by 1168…were in elementary school.

  9. No Man says:

    Don’t members need to make similar reasonable expectations of the privacy decisions for photographs under Art. 120?  I think that sells our members panels short that they can’t make those kinds of judgments based on the facts.  I don’t disagree that it is a thorny factual issue.  But I don’t see it as insurmountable.

  10. greenblue says:

    if you send a text or non-explicit photograph to a person, do you have any “reasonable” expectation of privacy?  are we saying the ROE is created merely bc of the sexual nature of the photograph?  what if what was broadcast was, instead, the contents of a sexting exchange?

  11. Isaac Kennen says:

    The easy case is the peeping tom who obtains an intimate image without the subject of that image knowing, and then distributes it.  That is pretty clearly an invasion of privacy that harms public order – and therefore is subject to criminalization.  
     
    The hard case is one where a *competent* victim, voluntarily, shares an intimate image with someone else.  That’s a personal choice by a person with the right to make that choice.  If it turns out to be an unwise choice, then I’m not sure there’s a legitimate role for the State to play.  We should not make it a practice of having the State punish an accused for the natural and foreseeable consequences of the victim’s considered decisions.  For lack of a better analogy – distribution of private images under such circumstances is an assumed risk.  The State is not better positioned than the victim to assess whether that risk is (or was) worth bearing in any individual case.  

  12. Cloudesley Shovell says:

    I’ll throw out a few questions.  I don’t pretend to know the answers to these questions.
    1.  As a matter of law, who owns the copyright to a photograph?  Who controls the dissemination of a photograph, the copyright holder or the subject of the photograph (assuming they’re not the same person)?  Does this legal analysis change depending on what’s depicted in the photograph (that is, “intimate” v. not intimate)?
     
    2.  Who has the burden of proof on the element of “did not consent to the disclosure”?  How do you prove consent or lack thereof?  Can consent be presumed? The way the regulation is phrased, it seems that consent is presumed, and that the gov’t must prove that the accused knew or should have known that the person depicted did not consent to dissemination, but the law of consent is a minefield of contradictions. 
     
    3.  If a man sends his mistress very personal love notes in the US Mail, can the mistress later publish those letters?  Does the law change if the love notes are sent via email instead?  Texts?  Voicemails? Who owns them?  Who has the right to publish?  Does the man have a reasonable expectation of privacy in anything he writes and sends to another person, regardless of means of transmission and regardless of the subject matter of the writing?  Does the law change when he sends “intimate” photos instead?  What if he’s an accomplished artist and sends an “intimate” self portrait instead?  What if he’s no artist at all and just sends a crude cartoon?
     
    4.  Does the actual person in the “intimate” photo have to actually be the same as the person claimed to be in the photo?  What if a woman photoshops her ex-boyfriend’s face onto an “intimate” photo of some under-endowed schmuck, and emails it to all her friends, making jokes about Mr. One Inch Wonder.  Certainly she’s intending to humiliate her ex, but the picture is not actually of him, other than his face.  Does this violate the new regulation?  Is there an analogy to the law of real vs. virtual child porn?  What if she doesn’t send a picture, but just tells everyone of the ex’s shortcomings, whether true or not?  Why does a photoshopped image change the criminality or non-criminality of the conduct?  What if the photo is from the waist down only?  How does one go about proving that the photo is actually of the ex-boyfriend? 
     
    5.  What law will be used to define and establish the boundaries of “reasonable expectation of privacy” for purposes of the regulation?  Will this be a legal matter for the military judge, analogous to 4th Amendment law, or a decision for the members, based upon the facts of each case?  Is there any reasonable expectation of privacy at all if the “intimate” photo was taken when a third party was present (other that the photographer and subject?)  What if the intimate photo was taken in a place accessible by the public, even if at the time the photo was made, no other person was present?  What if another person was present, but unaware of the “intimate” nature of the photograph (Suppose a man “flashes” his girlfriend in a public park, and there are other people in the background of the photograph, but they’re 50 yards away and looking the other direction)?  What if a man sends the same “intimate” photo of himself to two different women?  Does he have any reasonable expectation of privacy?  What if he sends the photo to some woman he just met online, at her request?  
     
    6.  Why isn’t there a regulation on the dissemination of “intimate” photos in the first instance?  Why not a “no naked selfies” regulation? 
     
    Feel free to discuss amongst yourselves.  I’m asking questions.  I don’t have the answers.  I have some opinions, but I’ll keep those to myself.
    Kind regards,
    CS
     
     
     
     

  13. Bionic Barry Dylan says:

    I just don’t buy, legally or rationally, that anyone has a reasonable expectation of privacy in a photograph that they choose to share with someone else, be it with the entire world on publicly accessible social media or with a single individual. 
     
    Where does this overbearing criminalization of what has become very regular conduct end?  Are we going to start prosecuting 18 year old E2s for sharing “juicy” gossip that was told them “in confidence” by another E2? 

  14. Tami a/k/a Princess Leia says:

    I share Zach’s concern about the REP.  Seems like an additional unnecessary element that will lead to automatic guilt because naked selfies are (for the most part), inherently in a place where there’s REP.  Alternatively, if the person who shared the image was the one who took the picture, then there is no REP in that area whatsoever because there is no REP when the photographer has been invited into that area.
     
    If you want to get to the heart of the issue to prohibit sharing of naked pictures without consent of the person (or people) in the image, then leave out the whole REP thing.  Also very concerning that you have a requirement to either know or should have known there was no consent, followed by the possibility of conviction based on “reckless disregard,” that’s a lot of legal mumbo jumbo for panel members to take in.  Add this in to the standard for Article 92.  There’s a requirement for the order/regulation to be understandable to the average person.  If lawyers are arguing about the meaning of this, how can we expect the average servicemember to understand it?
     
    Further confounding this, you have a “justification” defense, i.e. if you have a legal justification for sharing the images, then there’s no violation whatsoever, regardless of consent and regardless how embarrassing it is.  For example, what if a servicemember videotapes the sexual act, without knowledge (therefore without consent) of other participant, and the purpose of the videotape is to protect himself from a future false allegation of sexual assault?  Then when the participant alleges sexual assault, the accused says everything was consensual and I have the video to prove it, then shows that video to LE?  Where the “one party consent” rule applies, seems to me there was legal justification.  But I can see the accused being prosecuted for Article 120 “wrongful recording” and Article 92.

  15. stewie says:

    I think cyber-bullying, which is the concern here, is an appropriate concern. I have no problem with criminalizing it in this case where someone shares a photo that is clearly intended to be between two people, and then that photo is later distributed widely particularly when it is with the intent to injure the reputation or well-being of the person who shared the photo.
     
    I would want to make it something the government has to prove clearly, but the overarching concept is just fine. I see no reason why “the State” cannot make that determination, particularly since it now has information the alleged victim did not have at the time of the photo transfer.

  16. Vulture says:

    It might do well to think worst case scenario and then walk it backwards.  Consider Anthony Wiener.  Somehow those where not invited, but really they where in an attempt to entice the recipient.  So that’s not a reasonable expectation of privacy.  Then there is the sports that caveat that their games are intended for the home viewing by their audience.  But then every sports bar in the town is showing them.  Plainly the cyber bullying has got to go.  That is just plain old detrimental to the service.  But their are analogues in society that can be presented to a panel to make the issue clear.

  17. Bionic Barry Dylan says:

    Perhaps the best way to do this would be to approach it in a manner similar to a 134 crime.  In other words, require a showing, beyond a reasonable doubt, that the conduct was prejudicial to good order and discipline or service discrediting.  I think that would strike the balance between placing reasonable limitations on this sort of conduct and protecting service members from facing criminal convictions under ridiculous circumstances.
     
    Consider the all too common scenario where LCpl John and LCpl Jane, both serving in the same battalion, are dating.  They breakup.  LCpl John shows a naked picture of LCpl Jane that she voluntarily shared with him to LCpl Joe.  Should that conduct, big picture, be something the government needs to intrude upon?  I believe the answer is no because there is no legitimate state interest for such action.  That is high school BS.
     
    Now assume the same set of facts, except that LCpl John, instead of just showing the nude pic to LCpl Joe, makes 100 copies of the naked pic and posts them all over the battalion headquarters building over the weekend.  That would meet the standard of service discrediting/prejudicial to good order and discipline…punishing that conduct would serve a legitimate purpose warranting action by the command.

  18. P.McLaughlin says:

    Bionic – I follow the analogy and appreciate the differences, but are we beyond creating an “easier to prove” Art. 134 violation regarding broadcasting or distributing intimate images based on a potential Congressional pre-emption in Art. 120c?

  19. DefenseHack says:

    This all seems to be a 134-ish offense if anything.  I think that the sharing of such images/video without consent that can have the military nexus of prejudicial to good order and discipline, or service discrediting is the way to make this legit.  Just my 2 cents.

  20. Bionic Barry Dylan says:

    Actually, I don’t think the best solution would be to have a new regulation or even a new, yet narrowly defined prohibition, as I suggested above.  I was trying to figure out a way to make that solution workable.
     
    Would the best solution not just be to treat service members like adults and expect them to behave like adults?  In other words, let them bear the brunt of responsibility for foolish choices like distributing nudes of themselves instead of swooping in and saving them from the consequences of their poor choices by making them “victims.”
     
    If crimes are committed, then treat them as such (like photos that are taken surreptitiously), but don’t make up new rules to criminalize juvenile conduct that people born before 1995 tend not to understand and/or engage in. 

  21. DefenseHack says:

    Bionic – I agree, but that isn’t going to happen… ever.

  22. Bionic Barry Dylan says:

    I know, right?  I’ve been wasting my breath making the same argument against things like alcohol prohibitions, curfews, GO-1s, etc. for years…

  23. Tami a/k/a Princess Leia says:

    P. McLaughlin,
     
    Article 120c applies to images taken without consent.  The pictures at issue in the Marine case were either selfies taken by the alleged victims, or pictures taken with the alleged victim’s consent by the person who posted the picture.  I wholeheartedly agree this can be an Article 134 offense.  Or why doesn’t the Navy just use the Army’s online misconduct policy?  No sense in reinventing the wheel.

  24. k fischer says:

    CS @ question d6
    Much like Funny Hartman’s dislike for unlocked footlockers because if it weren’t for a$$holes like Pyle who left his foot locker open, there wouldn’t be any thieves in the world.  If there weren’t filthy miscreants taking nekked photos of themselves sometime with part of their uniforms showing, then there wouldn’t be cyberbullies in this world.  Same thing holds true with drunk people.  If people wouldn’t drink themselves into oblivion, then there wouldn’t be as many guys having to register as a sex offender.  Or if guys would wait at least 6 months before marrying a beautiful  woman, they probably wouldn’t be falsely accused of rape when they filed for divorce to get away from her when they find out she’s got a BPD.

  25. jagaf says:

    @ IK,
    “The hard case is one where a *competent* victim, voluntarily, shares an intimate image with someone else.  That’s a personal choice by a person with the right to make that choice.  If it turns out to be an unwise choice, then I’m not sure there’s a legitimate role for the State to play.  We should not make it a practice of having the State punish an accused for the natural and foreseeable consequences of the victim’s considered decisions.  For lack of a better analogy – distribution of private images under such circumstances is an assumed risk.  The State is not better positioned than the victim to assess whether that risk is (or was) worth bearing in any individual case.”
    You could apply that same logic to a victim who is raped after passing out from etoh intox or, perhaps better for the audience, to someone walking out of a bank with a wad of cash in a bad neighborhood. Yes, in each situation, the victim may have made bad decisions. But a different person also made a choice in these situations too: the subject who decided to rob the person outside the bank, climb on top of an unconscious person, or, yes, share a photo that in any place, including a courtroom, where common sense and knowledge of ways of the world are given any sway, was not intended to be further disseminated. Why is the choice of the subject to share such a photo (clearly intended to be private) with a person with whom the sender may well be an intimate, romantic relationship at the time of sending be any more foreseeable than that you might get robbed walking out of a bank with a wad of cash?
    I don’t know that we’ll see many of these situations in court, at least as standalone charges, but I don’t think this will be that difficult a concept for members to get.

  26. Isaac Kennen says:

    jagaf,
    The difference is that once a picture is freely given to an accused, it belongs to that accused.  It doesn’t belong to the giver anymore.  In contrast, the rape victim did not give similar consent (because if they had given consent then they could not be a victim of rape).  The robbery victim also did not give such consent (or else they could not be a victim of robbery).  Once a person voluntarily transfers an item to another human being, that item is no longer theirs.  
     
    That’s not to say that a person who uses an image that was voluntarily given to them cannot be guilty of using that image in a way that constitutes criminal harassment.  But, the genesis of that criminal theory is not that the victim somehow retains a right of privacy to the image.  The nature of a criminal harassment allegation is that a person is not permitted to use any of his or her property to intentionally alarm, annoy, torment, or terrorize another person.  The ownership of the property in question is not really relevant for that sort of crime.
     

  27. Concerned Defender says:

    To me this seems far easier to address as a form of sexual harassment.  It’s like the reverse of a peeping tom or a flasher, but victimizing a person who shared her/his images for a limited purpose and viewer (setting aside these go through digital media carriers and the NSA spy traps).  
    Really good issues have been raised in this thread.  Seems to me this must boil down to a “golden rule” and some level of common sense.  Private sex related pictures sent or given to someone for private romantic purposes are not intended for public at large consumption.   Really goes down to nefarious action and intent.  If you publish a picture of someones sexual parts in any form with an intent similar to ART 120 or personal gain, gratification, embarrassment, harassment, etc. then that’s illegal.  It’s a form of sexual harassment at minimum.
    But what level of protections should be required of the recipient?  What if he loses his phone or has his email hacked and some 3rd party then steals and discloses the photos?  Is the original recipient liable for failing to safeguard?
     
     
     

  28. Vulture says:

    In that case, and in complete agreement with everyone, it seems like the best thing to do is say “Zack, if I have ever pissed you off so much that you want to publish my email – I’m sorry.”

  29. Zachary D Spilman says:

    There’s three totally separate issues here.

    First is whether a person who shares nude images of a fellow servicemember belongs in the service; whether they’re a good teammate.

    Second is whether they’re a criminal.

    Third is the politics.

     

  30. stewie says:

    The first two suffice I would think…it’s why we criminalize some adultery…you pull a Jody on your buddy, you aren’t being a good teammate and we’ve made it criminal even though I’m pretty sure it’s not criminal anywhere else in society anymore (or if so, it’s enforced about as much as the laws against walking your cattle on the left side of the street on Sundays).

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