Congress Takes Aim at Sextortion

Last week, I wrote about a new Brookings report on sextortion, an increasingly common form of blackmail that the authors described as “remote sexual assault.” Perpetrators of sextortion acquire sexually explicit photos or video of someone—usually by manipulating them over social media or by hacking into their social accounts—and use the sensitive files to blackmail that person into providing more recordings of humiliating sex acts.

The report’s authors examined 78 state, federal, and international cases of sextortion, and found that perpetrators often torment dozens or even hundreds of victims. The harm is severe and lasting: In interviews with law enforcement, victims say they’re afraid to use the Internet or be seen in public, and at least one person was driven to attempt suicide by her attacker.

Despite the severity of the problem, the Justice Department doesn’t keep consistent data on sextortion cases, the authors found. They recommended a targeted data-gathering effort, and this morning, Barbara Boxer, a Democratic senator from California, sent a letter (PDF) to Attorney General Loretta Lynch asking for information on how her department collects data on sextortion cases.

Benjamin Wittes, the lead author of the Brookings report, says there’s been interest from both houses and parties since the report was published last Wednesday. That very day, for example, Katherine Clark, a Democratic representative from Massachusetts, called for a new federal law criminalizing sextortion. (A spokesperson for Boxer said that the senator considers better data collection the right first step.)

A push for federal legislation on sextortion may be able to leapfrog some of the snags that have slowed past attempts to pass laws criminalizing nonconsensual pornography, or “revenge porn”—the practice of posting explicit photos of another person with the intent of harassing them.

Revenge-porn legislation has gotten bogged down with free-speech concerns from advocates who say the law shouldn’t ban posting a legally obtained image. But the authors of the sextortion report put forward a legislative proposal that instead criminalizes the less ambiguous acts of threatening and extortion.

Meanwhile, a reader of my original post questions the wisdom of pushing to close the sentencing gap between people who victimize adults and children:

Do we honestly think that ANY sextortionist would engage in this behavior if he knew he’d only be imprisoned for three years, but not if he knew he was going to get a 10-year sentence instead? Of course not. People do this stuff because they think they won’t get caught, not because of some rational calculation of how many years is worth it to them.

If you want to actually protect people you need to raise the rate of prosecutions. People are deterred by the conviction that they WILL be caught and punished, not by whether the punishment is three years or 10 years. If you really want to help victims, surely it would be a lot more useful to pass laws designed to encourage them to come forward rather than by passing laws raising the punishment for the minuscule percentage of people who will ever be caught as long as long as prosecution rates remain laughably low.

I would point out that criminalizing sextortion at the federal level would likely lead to exactly what this reader is calling for: more prosecution. Without the right legal tools, it’s hard for law enforcement to go after perpetrators of sextortion.

I agree with the reader’s point about encouraging victims to come forward, but that’s a complex problem with no easy solution. Law probably isn’t the best arena to address it—but the message that new legislation would send could have an effect. “Criminal laws are supposed to reflect the values of our communities,” says Danielle Citron, a law professor at the University of Maryland and the author of Hate Crimes in Cyberspace. By that thinking, designating sextortion as a specific criminal act could legitimize victims and help convince them to speak out.

Another reader, Innis, raises a question:

A young man near me killed himself over this sort of scam: “Bid to extradite man over Daniel Perry 'sextortion' death.” How should we prosecute these crimes? Attempted murder, or an actual murder charge?

If you have any strong views on that question or others raised by the sextortion issue, let us know.