As you have no doubt heard by now, a number of celebrities, including Jennifer Lawrence and Kate Upton, have recently been victimized by digital hackers who have released private photos of the celebs in the nude and during other private moments to the Internet at large.
Jennifer Lawrence and Kate Upton can certainly sue the hackers in civil court and may be compensated monetarily for damages to their privacy and reputations. But is the theft a crime? And, if so, can it be characterized as a sex crime?
The answers, like many to questions arising from the digital age, are complicated to say the least.
Believe it or not, there is no federal statue that prohibits invasion of privacy per se, and many states have simply followed suit, which means that in most places within the U.S. invasion of privacy is not a crime. That said, it's an altogether different matter when it comes to stealing someone's private information - photographs or credit card information, for instance - and certain laws can be used to prosecute. That's true whether the victim is a private or public figure.
Under federal law, 18 U.S. Code Sections 1030 and 2511 usually apply, and they are both felonies. Section 1030 addresses fraud and related acts in connection with computers, and Section 2511 addresses wiretapping.
In 2012, Christopher Chaney was charged under both these statutes for posting pictures online that depicted celebrities Scarlett Johansson and Mila Kunis in the nude. Chaney pled guilty, was sentenced to 10 years in prison and was also ordered to pay fines of up to $2.25 million dollars. It would seem he got off easy.
The point is, although there a number of ways to prosecute hackers, there is no specific federal law applicable to this case. The use of wiretapping and computer use laws has seemed to work, but it remains to be seen for how long.
Most states have so far focused their efforts on the digital crime front on drafting laws to deal with "revenge porn." While the term applies to the criminal act of posting online images of former partners in the nude or engaged in sex acts without the partners' permission, the statutes also apply when the poster does not know the victim personally.
Arizona and Idaho have passed laws making such acts a felony on the first offense, while Georgia and Utah make it a felony only upon the second offense. According to the National Conference of State Legislatures, since 2013 a total of 13 states have passed laws that specifically ban "revenge porn." Hopefully, more states will follow the trend.
Since news broke of the "nude celebrity photo hacking," the Internet has been set ablaze with comments characterizing the crime as a "sex crime." But that's simply not the case under the law. In fact, the situation more closely mirrors the data hacks Home Depot was targeted for this week. These fall under federal statutes regarding wiretapping and fraud in relation to computers. But while the financial impact to Home Depot may be devastating, the impact to the psyches of these celebrities will be long-lasting and far-reaching. Moreover, while large-scale data theft can be solved by throwing money at the issue, that's certainly not the case for keeping "delicate photos and videos" under wraps.
Clearly, our criminal statutes need to evolve in step with technology. Legislatures need to draft laws that address, in specific, the theft and use of private data, including photos, for the purpose of monetary gain, revenge or exploitation.
These hackers may not have committed a sex crime in the eyes of the law. But ask the celebrity victims how they feel about having private photographs showing them in the nude in the hands of millions. Not a sex crime? These victims may beg to differ.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heather is also a national television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360 and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
