Summary
California Senate Bill 676 would make it a crime to publish the name, address or other personally identifying information “associated” with an image of an “intimate body part” of the person without his or her consent. There is an exception if the distribution is a republication of “otherwise lawful public material,” but this term is not defined.
The bill was amended to remove the provision criminalizing the publication of a name or personal information “associated” with a nude photo distributed without consent. A provision broadening the state’s existing non-consent photo law was inserted into the bill.
The bill was amended again to remove the provision broadening the state’s non-consent photo law.
Status
The bill was amended to remove both provisions on non-consent photos that Media Coalition opposed. As enrolled, the bill allows forfeiture of photos that violate California’s existing non-consent photo law. Gov. Jerry Brown signed the amended bill into law.
Analysis
S.B. 676 violates the First Amendment because it is overbroad and vague. It sweeps in not just malicious invaders of privacy, but also publishers of artistic, historical and newsworthy information, and countless Internet users who innocently post information online.
» It would criminalize the publication of news stories. Because the bill still applies even if someone else has identified the photos or the person is easily identifiable, it could be used to prosecute a newspaper for publishing a story about Jennifer Lawrence’s stolen photos. There are also far fewer narrowing elements in S.B. 676 than California’s existing nonconsensual distribution law, so a journalist who identifies Anthony Weiner as the sender of his intimate photos could go to jail under this bill, even though the woman who receives the photos and gave them to the journalist could not under California’s law.
» It is unclear what “associated” means. Does it mean publishing personal information along with an image? Or can someone be prosecuted if he/she publishes the name of the person but only links to an image? The broadest reading could mean publishing someone’s name who is associated with a nude photo, even if the story never actually mentions the photo. The vagueness of this bill creates a chilling effect on the First Amendment rights of media organizations, because they don’t know what is illegal under this law.
History
- On February 27, 2015, the bill was introduced [3] and referred to the Senate Committee on Public Safety.
- Media Coalition submitted a memo in opposition [2] on April 7, 2015, explaining the constitutional issues with the bill.
- Hearings for the bill in the Senate Committee on Public Safety on April 14, 2015 and April 21, 2015 were cancelled at the request of the sponsor.
- The sponsor amended the bill [4] to remove the provision criminalizing the publication of a name or personal information “associated” with a nude photo distributed without consent. The sponsor instead added provisions that would expand on the state’s existing non-consent photo law.
- On April 27, 2015, Media Coalition submitted a memo in opposition to S.B. 676 as amended [1]. The memo explained the constitutional issues with broadening the state’s existing non-consent photo law.
- On May 5, 2015, the bill was amended [5] and no longer includes any language on nonconsensual distribution of photos. The amended bill was referred to the Senate Committee on Appropriations. The committee held a hearing on the amended bill and recommended that it be passed.
- The Senate passed the amended bill on May 22, 2015 and sent it to the Assembly for consideration.
- On July 10, 2015, the Assembly amended the bill to allow forfeiture of photos that violate California’s existing non-consent photo law. The Assembly passed the bill as amended on August 20, 2015. The Senate concurred in the changes on August 28, 2015.
- Gov. Jerry Brown signed the bill into law on September 9, 2015.