Comedian and actress Leslie Jones can banish a malicious ghost from a haunted New York City street, a nervous look from Olympian Kerri Walsh Jenning’s face, and even the snarky, aggressive presence of Breitbart writer Milo Yiannopoulos from Twitter. But when it comes to taking down photographs featuring apparently sensitive information of hers leaked by trolls on the Internet, Jones, like the rest of us, is virtually powerless to make now-publicly available information—even that of a non-consensual and malicious nature—disappear.
Wednesday morning, TMZ reported that Jones’ personal website had been hacked, and that, in place of its usual content, trolls had posted pictures of a naked woman that appeared to be Jones, a racist video featuring the meme Harambe, and images of a United States passport and a California driver’s license with an address, it was later reported, that appeared to match her own. Less than 30 minutes later, TMZ posted an update: The website had been taken down. But the damage had been done: Those same messages began circulating on 4chan’s /pol/(politically incorrect) boards the same day. Now, faced with the fact that her images are in the public domain, she likely won’t be able to remove the pictures entirely or prosecute those who share: As Kyle Chayka wrote for Pacific Standard, U.S. privacy laws generally hold that, once information is publicly available, it comes into the possession of the public.
Jones has taken on such trolls before—prior to and during the release of the all-female Ghostbusters, in which she stars, some Twitter users targeted her with racist and sexist comments. In those cases, she managed to control the vitriol against her, at least to an extent: Her activism and public comments around the harassment she experienced on Twitter has been linked to the platform’s new “quality filter” feature, and to the very public suspension of users who encouraged or perpetrated the abuse against her, such as Yiannopoulos.
But as Chayka wrote following the 2014 leak of nude pictures of several celebrities including Jennifer Lawrence, Kaley Cuoco, and Kate Upton—a phenomenon colloquially dubbed “Celebgate”—those who suggest that famous people can “own” their photos in scenarios of mass dissemination are, quite literally, wrong, especially when disseminating the images is seen to infringe upon free speech. Take ETW Corp. v. Jireh Publishing, Inc., wherein Tiger Woods’ licensing company lost a lawsuit against a poster company that had printed three images of him winning the Masters Tournament in 1997 on grounds that it had violated his right to control publicity of his name and likeness (the court considered First Amendment rights paramount over a celebrity’s “right to publicity” in this case). Or the fact that, in 2014, a Florida gallery exhibited some unaltered nudes from Celebgate in an exhibit that was intended to expose privacy vulnerabilities online—and the artist argued he would not be legally vulnerable because, invoking the First Amendment, “I’m taking them off the Internet and putting them into a new medium that is transformative.”
But many non-artists get away with sharing too. Though Lawrence warned in 2014 that authorities would prosecute those who shared the hacked photos, so far Celebgate has yielded an 18-month prison sentence for a man charged with felony computer hacking; and a trial for another suspect who plead guilty to similar charges in July. Neither has been prosecuted for disseminating the information.
“For the most part, like in this Leslie Jones case, items that are publicly available… will fall under the reasonable expectation of privacy standard in the U.S.,” says Adam Moore, an associate professor of philosophy at the University of Washington and the author of Privacy Rights: Moral and Legal Foundations. “Since it’s public, we have no reasonable expectation of privacy, so it can be published and you really can’t do anything about it.” America’s “reasonable expectation of privacy” standard often stands in stark contrast to what is considered “reasonable” in Europe, which notably upholds the “right to be forgotten,” a measure that helps enable Internet users to self-select what information about them lives online.
That’s not to say there aren’t legal options available to Jones. She can pursue legal action against the individual hacker or hackers, potentially through tort of intrusion or punitive damages (the latter course recently won Hulk Hogan $25 million in a case against the news site Gawker). And on a criminal level, the federal government could prosecute the hacker or hackers under the Computer Fraud and Abuse Act, or Jones could cite copyright violation if she took these alleged photos herself.
Nevertheless, it can be very hard to incriminate the share-happy Internet users who weren’t necessarily involved in the hack itself. As Joseph Steinberg reported in Forbes in 2014, though celebrities can try to invoke their “Right to Publicity” to prosecute people who disseminate photos without their consent, prosecution can be costly, and it can be very, very hard to pin down all the parties involved. Other potential options include invoking “revenge porn” and harassment laws—but only certain states allow authorities to press those charges. While interactive service providers like Google can bear some responsibility for publishing the images, some statutes like the Communications Decency Act can protect them from liability in certain cases; if those platforms are considered a legitimate media outlet, they may have free speech protections.
All of which amounts to a particularly troubling legal landscape for a highly visible and vocal woman of color like Jones: Organized and non-organized group harassment is a daily battle for many women and people of color, celebrity and non-celebrity alike, on the Internet; and with no truly threatening or standardized disincentives in place to prevent and punish the spread of information once it’s been illegally accessed, typical means that troll groups use to humiliate their targets—such as doxxing and spreading nude or otherwise revealing photos—will likely continue.
And we shouldn’t expect a change anytime soon.It would be extraordinarily difficult for legislators to draft a single law or body of laws to control privacy breaches online, says Fernando Pinguelo, the chair of the Cyber Security & Data Protection Group at the Scarinci Hollenbeck law firm. “I’m not seeing any [new legislation to stem the dissemination of private information online] nor am I seeing anything in the drafting-bill state. I frankly don’t think it’s feasible to come up with a law that addresses all the nuanced points that are at play,” he says. The way these cases are prosecuted hinge entirely on specific facts—which determine whether it constitutes a harassment or revenge porn case, for instance—and jurisdictions, which create a “patchwork” of statues and common law to address these problems, Pingeulo notes.
That said, public sentiment has proven to be a powerful legal tool for victims of online bullying. Certain high-profile cases have galvanized the public to advocate for new legislation that might be apply to privacy violations online before—take the proposed “David’s Law” in Texas, named after a 16-year-old cyberbullying victim; or Minnesota’s new revenge porn law, which was reportedly passed the same day that a 21-year-old victim gave a tearful testimony of her experience. When people don’t have the legal ability to pursue prosecution in revenge porn and cyberbullying cases, Pinguelo says, the public tends to take notice—and advocate for better laws with their legislatures. “Those types of real-life examples typically drive public outrage, which then turns into legislation,” he says.
Here, too, the visibility and belovedness of celebrities can be advantageous. Before the hack, Jones was settling into an unofficial role as an advocate against online bullying: After being targeted with sexist and racist tweets by anti-Ghostbusters trolls in July and briefly leaving the social platform, Jones re-joined and worked to help change Twitter’s policies, meeting with Twitter CEO Jack Dorsey to talk about harassment, retweeting and embedding hateful tweets on her account to expose perpetrators, speaking about gang mentality on Late Night With Seth Meyers, and defending Olympics gymnast Gabby Douglas with a tweet when she faced similar harassment earlier this month. She gained plenty of new admirers in her role as an NBC correspondent at the Rio Olympics this month, and with 575,000 followers on Twitter and powerful people like Paul Feig and Lena Dunham tweeting in her support since the hack on Wednesday, it seems Jones could energize her fans to call for revenge porn or cyberbullying laws in jurisdictions that haven’t yet implemented them.
But it’s a sad thing, too, that a victim of such a personal attack should have to, more than ever, become the face of a preventive cause in order to bring some kind of accountability to bear on the people who perpetrated it. Though Jones may eventually triumph in locating and prosecuting the individuals responsible for this latest attack, most will remain anonymous — these days, hackers with Tor browsers and proxies can be very tricky to locate, and that’s not to mention how easy it can be for bullies to blend in on the Internet. Safety can still be found in invisibility online—and if Jones chooses to aggressively pursue her attackers, she will be doubling down on both her cause and her exposure.