Senator Kamala Harris -- famous here mostly for her constant, Quixotic attempts to turn Backpage into a criminal defendant -- is now crafting laws at the federal level. Her support for the internet-crippling SESTA is already known. Her next target, apparently, is revenge porn purveyors.Harris' bill [PDF] will likely be remembered more for its too-clever acronym than its content. The ENOUGH Act of 2017 (brace yourself: Ending Nonconsensual Online User Graphic Harassment) is another attempt to criminalize revenge porn at the federal level. The problem is the subject matter is slippery and difficult to nail down precisely enough to avoid First Amendment concerns.The bill does make an attempt at narrowly crafting a definition and at least tries to limit the liability of platforms hosting user-generated content, but it still has some issues. For one, the definition of images covered by the act is a bit too vague to prevent the possible criminalization of harmless images.
The term ‘intimate visual depiction’ means any visual depiction (as that term is defined in section 2256(5)), in original or modified format, of an individual who is reasonably identifiable from the image itself or information displayed in connection with the image, in which—(A) the individual is engaging in sexually explicit conduct; or(B) the naked genitals or post-pubescent female nipple of the individual are visible.
The non-consensual sharing of photos of men clad only in their underwear is apparently fine as only the female nipple is afforded protection. And if all it takes is an exposed female nipple to trigger possible charges, anyone who captures images of wardrobe malfunctions, breastfeeding mothers, or topless protesters better have some waiver forms on hand.But beyond that, there's the issue of sharing of any explicit depiction without the consent of all parties. Any non-consensual sharing of depictions of sexual activity and/or nudity is criminalized unless the person can show the sharing was a "matter of public concern." This would be the bill's journalism exception. There are also exceptions for law enforcement, legal proceedings, and "good faith" reporting of unlawful activity.What makes this bill a bit better than many of its competitors is the burden placed on the government to prove intent.
[I]t shall be unlawful to knowingly use any means or facility of interstate or foreign commerce to distribute an intimate visual depiction of an individual—(1) with knowledge of or reckless disregard for—(A) the lack of consent of the individual to the distribution;(B) the reasonable expectation of the individual that the depiction would remain private; and(C) harm that the distribution could cause to the individual; and(2) without an objectively reasonable belief that such distribution touches upon a matter of public concern
The bill also drags service providers into the mix, but fortunately doesn't expect them to police content or otherwise threaten their Section 230 protections. The only service providers that would be targeted would be those that "intentionally solicit and predominantly distribute content" that the provider "knows" is in violation of the law. So, there's intent needed to be proven there as well.Still, the bill has some questionable components. First, the bill treats threats of publication as equally criminal as actual publication. In both cases, violators could be subject to an unspecified fine and up to five years in prison. It also includes an extraterritoriality clause that would allow the US to pursue overseas violators as long as the subject depicted was an American. We'll have to see if that still holds up once Congressional lawyers have taken a look at it.Overall, the bill isn't terrible. It requires a showing of intent, something other revenge porn laws have disregarded. It does still present some First Amendment issues because the stipulations attached to violation (expectation depiction would remain private, distribution would cause harm to the subject depicted, etc.) are bound to swallow up some journalistic endeavors or documentation of sexual assault allegations (if the latter isn't shared exclusively with law enforcement). The edge cases will be left to prosecutors' discretion, which definitely isn't a good thing. All the evidence needed to argue for less prosecutorial discretion is the long string of embarrassments committed by prosecutors pursuing charges against sexting teens.Given the aggressiveness of Harris' pursuit of Backpage for sex trafficking, it's somewhat of a surprise to a Harris-backed revenge porn bill take a mostly hands off approach to internet service providers. Still, there's a chance the bill could be made worse after a few markup rounds, turning it from an almost-acceptable piece of legislation into a speech-chilling, Section 230-damaging monstrosity.
I like to give credit where credit is due. When it comes to the myriad posts we've written about Budweiser or its parent company Anheuser-Busch, the credit has mostly been to do with being intellectual property bullies and all around megalith caricatures. That said, the company's actions surrounding a recent case of actual trademark infringement show the company not to be without humor or grace when it actually tries.Minneapolis brewery, Modist Brewery, recently unveiled a new double IPA it decided to call "Dilly Dilly." If that isn't ringing any bells, you must not have seen the series of kingly ads for Bud Light that I find funny, although I can't describe exactly why. As part of the ad campaign, Budweiser trademarked the phrase "dilly, dilly", because of course they did. Whatever problems we might have with the practical application of trademark law in modern times, the phrase is creative, unique, and with the ad campaign it has become an identifier for the Bud Light brand. Modist Brewery even knew about the trademark. And it expected Bud Light to push back.
According to The Growler Magazine, the owners had an idea they would be getting a message from Bud Light after they found out “Dilly Dilly” had already been trademarked as a slogan.“But then we said, ‘Screw it, let’s see what happens.’ And that’s what happens,” Kale Anderson told the magazine.
Yes, Budweiser did indeed respond...by sending an on-theme messenger to Modist Brewery. In case you can't see the video, the "messenger" from Budwesider states the following.
“Hear ye, hear ye!” he began. “Dear friend of the crown, Modist Brewery Company, congratulations on the new brew: Dilly Dilly Mosaic Double IPA ...” the man read. “We are duly flattered by your royal tribute. However, ‘Dilly Dilly’ is the motto of our realm. So we humbly ask that you keep this to a limited edition one-time-only run. This is by order of the king. Disobedience shall be met with additional scrolls, then a formal warning, and finally, a private tour of the pit of misery.”
To make sure the disposition of the message was clear, the messenger goes on to gift two Super Bowl tickets to the brewery, as the game will be in Minnesota this year. Rather than being the bully, Budweiser added some humor to its request that the brewery, which knew about the trademark, simply not continue the run of the IPA under the infringing name past the limited run, and it managed to do so in an entertaining and congenial way. As far as cease and desists go, this is about as good as it gets.And Budweiser is earning high praise in the press for all this, extending its branding message and bathing the Bud Light product in positive coverage. That's a pretty good look and a welcome departure for a company not known for being so human and accommodating.