The new law is not expected to garner many prosecutions as there are plenty of holes in its cloth. For example, someone who posts a compromising "selfie" is not considered a "victim" under the statutory language; nor does someone who re-posts or forwards an image come within the scope of the new act. Probably as it should be.
In addition, prosecutors will likely have difficulty proving the requisite "mens rea" or intent to cause emotional distress. That is, unless they can get their hands on the perp's text messages wherein, surely admissions and statements against interest abound.
The law came about in the first place due to a phenomena sweeping the West Coast college campuses and even high schools: revenge porn. Here's how it works.
You take a young couple, preferably of millennial vintage, and you roll-out their 15-minute romance, complete with digital love making. Next, you add a nasty break-up combined with some bad judgment and a splash of indiscretion which will include forwarding nude pics of the "victim" to select peeps and, viola!
By requiring the intent to cause emotional distress, the new Cali law avoids a clash with the First Amendment relative to such free-wheeling, er, expression. Websites such as Instagram [where the images are most likely to be posted these days] are immune from prosecution or liability under an expansive 1996 federal law.
And finally, much of the criminalized conduct set forth in the new act is already a crime in other contexts. For example, most states now have anti-hacking laws and there is a growing body of privacy law cropping up making it illegal to cross certain digital lines.
California's new law will not be the last word on revenge porn. We monitor the trend report back.
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