This story in The Hill alerted me to the “Protecting the Rights of IndiViduals Against Technological Exploitation Act” (PRIVATE Act), H.R.2052, which passed the House with no nay votes on May 24, 2017, and has been referred to the Senate Armed Services Committee. A separate (but identical) bill was also introduced in the Senate (S.1296).

The bill proposes a new Article 117a of the UCMJ to prohibit the “wrongful broadcast or distribution of intimate visual images.” The text of the proposed article – which seems to avoid the problems I identified in the new Article 1168, U.S. Navy Regulations – is after the jump.

§ 917a. Art. 117a. Wrongful broadcast or distribution of intimate visual images

(a) Prohibition.—Any person subject to this chapter who—

(1) knowingly and wrongfully broadcasts or distributes an intimate visual image of a private area of another person who—

(A) is at least 18 years of age at the time the intimate visual image was created;

(B) is identifiable from the image itself or from information displayed in connection with the image; and

(C) does not explicitly consent to the broadcast or distribution of the intimate visual image;

(2) knows or reasonably should have known that the intimate visual image was made under circumstances in which the person depicted in the intimate visual image retained a reasonable expectation of privacy regarding any broadcast or distribution of the intimate visual image; and

(3) knows or reasonably should have known that the broadcast or distribution of the intimate visual image is likely—

(A) to cause harm, harassment, intimidation, emotional distress, or financial loss for the person depicted in the intimate visual image; or

(B) to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships,

is guilty of wrongful distribution of intimate visual images and shall by punished as a court-martial may direct.

(b) Definitions.—In this section (article):

(1) BROADCAST.—The term ‘broadcast’ means to electronically transmit a visual image with the intent that it be viewed by a person or persons.

(2) DISTRIBUTE.—The term ‘distribute’ means to deliver to the actual or constructive possession of another person, including transmission by mail or electronic means.

(3) INTIMATE VISUAL IMAGE.—The term ‘intimate visual image’ means a photograph, video, film, or recording made by any means that depicts a private area of a person.

(4) PRIVATE AREA.—The term ‘private area’ means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.

(5) REASONABLE EXPECTATION OF PRIVACY.—The term ‘reasonable expectation of privacy’ refers to circumstances in which a reasonable person would believe that an intimate visual image of a private area of the person would not be broadcast or distributed to another person.

 

6 Responses to “House passed UCMJ amendment to prohibit non-consensual distribution of intimate images”

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

    What if the police are investigating alleged sexual assault and the accused whips out a phone showing a video of the sexual activity at issue to prove consent, shows the video to the police.  The police agree the sex was consensual and drop the case.  No distribution, so that by itself seems to lead to no violation.  Was it “broadcast?”  Probably.  Is it “wrongful” to show the video to the police?  I don’t think so.  I think gathering evidence to defense yourself against a false accusation is sufficient legal justification for the recording and broadcasting, as long as broadcasting is limited to showing it to the police or your attorney.

  2. (Former)ArmyTC says:

    Tami, the first analogue that came to mind is an IAC claim. A lawyer can breach privilege to defend an IAC claim. I don’t see anything wrongful with “broadcasting” the video to defend yourself.

  3. Zachary D Spilman says:

    You’re overlooking the harm element in paragraph (a)(3), Tami. Any harm in your hypothetical is not from the revelation of the truth by the accused showing the video, but rather is from the predicate lie by the alleged victim.

  4. Vulture says:

    We may see the very instance of the circumstances you are describing on national television; if you are into The Bachelor.  I don’t watch no reality TV, I don’t follow reality TV, I don’t know nothing about reality TV.

  5. Dew_Process says:

    There are some interesting intellectual property issues that this raises, e.g., who “owns” the image vis-à-vis whether any expectation of privacy is “reasonable or not.”
     
    Obviously there’s a difference between surreptitious photographs than those where the person consents to allow themselves be photographed.
     
    Or how about a non-solicited photograph sent to someone as a way to get them “interested” in you?
     
    More work opportunities for lawyers!

  6. Interested Party says:

    The new proposal of Article 117a differs very little from the Broadcasting statute under Article 120c (Other Sexual Misconduct). Instead of convoluting the UCMJ with another Article, revise the one already in place to cover the new elements.