Sunday, April 23, 2017

Flaws in the new Article 1168, U.S. Navy Regulations, regarding sharing intimate images without consent of the person depicted

We haven't covered it much, but the Marines United scandal involves a Facebook group by that name where personal information and explicit photographs of current and former female service members were posted (generally for the purpose of bullying and harassment). An early news report about the scandal is here. A SASC website on the scandal is here, and video of a March 14, 2017, SASC hearing is available here. The story continues to develop.

The latest development came Tuesday, with the promulgation of a new Navy Regulation intended to target photo sharing like that in the Marines United group. In ALNAV 021/17 the acting SECNAV creates Article 1168, U.S. Navy Regulations, violation of which is punishable under Article 92:

1. Pending formal amendment to reference (a), this interim change adds a new article, Article 1168 to reference (a). This interim change is effective upon the release of this ALNAV.

2. Article 1168 of reference (a) is added to read as follows:

a. 1168. Nonconsensual distribution or broadcasting of an image

(1) The wrongful distribution or broadcasting of an intimate image is prohibited.

(2) The distribution or broadcasting is wrongful if the person making the distribution or broadcast does so without legal justification or excuse, knows or reasonably should know that the depicted person did not consent to the disclosure, and the intimate image is distributed or broadcast:

(a) With the intent to realize personal gain;

(b) With the intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person; or

(c) With reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced.

3. Distribution means the act of delivering to the actual or constructive possession of another, including transmission by electronic means.

4. "Broadcasting" means the act of electronically transmitting a visual image with the intent that it be viewed by a person or persons.

5. An intimate image is any visual depiction, including by electronic means, that:

a. Includes another person who is identifiable from the depiction itself or from information conveyed in connection with the depiction;

b. Depicts that person engaging in sexually explicit conduct or depicts the private area of that person; and

c. Taken under circumstances in which the person depicted had a reasonable expectation of privacy.

6. "Sexually explicit conduct" is defined in Part IV, paragraph 68b, Manual for Courts-Martial (2016 Edition).

7. "Private area" is defined in Part IV, paragraph 45c, Manual for Courts-Martial (2016 Edition).

8. In lieu of entering this interim change in reference (a), make a bold letter notation after Article 1167 of reference (a), SEE ALNAV 021/17 and file this ALNAV in front of reference (a).

9. This interim change will be incorporated into the next printed revision of reference (a).

10. Released by Sean J. Stackley, Acting Secretary of the Navy.

The new Navy Regulation 1168 suffers from three obvious flaws.

First, it's not clear that the definitions and limitations in paragraphs 3-7 are part of the new Article 1168. Rather, the formatting of the ALNAV suggests that Article 1168 is only the prohibition in paragraph 2.a, including sub-paragraphs 2.a(1) and 2.a(2)(a-c). The additional paragraphs (including the three-part definition of intimate image in paragraph 5) seem to be merely SECNAV's interpretation and not actually part of Article 1168.

Second, paragraph 2.a(2) of the ALNAV creates a confusing, double three-part test for when the distribution or broadcasting of an intimate image is wrongful. The act must be:

[(1)] without legal justification or excuse, [and]

[(2) done when the person] knows or reasonably should know that the depicted person did not consent to the disclosure,

and [(3)]the intimate image is distributed or broadcast:

(a) With the intent to realize personal gain; [or]

(b) With the intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person; or

(c) With reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced.

ALNAV paragraph 2.a(2) (paragraphing and emphases added). Assuming it's even possible to prove these facts well enough to win a conviction, it's doubtful that the average person in the Naval Service can understand the line between permissible and prohibited sharing. The personal gain provision is particularly thorny (as it is not limited in any way and could be read to include gaining merely a better reputation in a certain community).

Third, insofar as paragraphs other than paragraph 2 of the ALNAV matter, ALNAV paragraph 5.c requires that the depiction at issue be "taken under circumstances in which the person depicted had a reasonable expectation of privacy." This is going to be remarkably difficult – if not impossible – to satisfy in the vast majority of cases that the Article is likely intended to reach. The images in the Marines United scandal, for example, were reportedly all images and pictures taken with the person's consent or by the person specifically for the purpose of sharing with others (selfies). But just like the 2007 Ad Council campaign that warned people that "once you post your image online, you can't take it back; anyone can see it," images taken with consent or for the purpose of sharing can hardly be said to have been taken under circumstances involving a reasonable expectation of privacy.



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