03 September 2014

Nude Photos! (Just Kidding. Why The Content of Stolen Photos Doesn't Matter)

I usually don't have much to say about celebrities and their nude photos, serial marriages, sex tapes, dubious diet plans, and questionable expertise on scientific and medical issues.

But I want to say something about the actress Jennifer Lawrence and her nude photos, which, if you haven't heard, were stolen when someone hacked the cloud-based service on which she had stored them. (Read more here.)

Let's say you just got your brakes fixed, and then, as you were speeding across the Tappan Zee Bridge at eighty miles an hour, they failed, and you careened into a barrier and got hurt. (Stay with me here - I am explaining a concept that will become important to what I have to say about the nude photos.) For the sake of easy math, let's say your damages total $100,000. You'd like to sue the boneheaded mechanic who didn't fix your brakes properly. You argue that he was negligent and that he owes you the whole $100K.

But wait. You were speeding at the time, says the judge. We need to figure out how much of your damages were caused by the faulty brakes, and how much were caused by your excessive speed. Because maybe the mechanic's negligence wasn't the cause of most of your injuries. Maybe your speed was responsible for 60% of your damages. If, at the posted speed limit, you would have sustained only $40,000 worth of damages, then that's all you're going to collect from the mechanic.

Your stupidity - your own negligence - exacerbated the problem. You don't get to collect damages resulting from a problem you helped to cause. That's a basic tenet of civil tort law, and it's called contributory negligence. Every law student learns this in her first-year torts class.

Now, let's say I left my back door unlocked and someone snuck into my house and stole a $100 bottle of scotch. It was really, really stupid of me to leave an expensive item like that in plain view, behind an unlocked door. It's like I was practically inviting a thief to come steal my Macallan.

But does that mean the thief is immune from punishment?

No. Because, as everyone learns in their first-year criminal procedure class, there is no contributory negligence in criminal law. That doctrine is limited to civil lawsuits. Think about the rule, and it will probably make sense to you rather quickly. All criminal behavior is discouraged, no matter how easy it was to pick on the victim. We can't let thieves off the hook simply because they prey on people too stupid to lock their liquor cabinets. Taking a bike that doesn't belong to you is still theft, whether or not the bike was locked to the rack; reasoning otherwise would put too heavy a burden on potential crime victims.

People who blame rape victims for their dress, their habit of running alone in the park after midnight, their consumption of alcohol - those people don't understand the concept that a victim is a victim and a criminal is a criminal. If we sanction the criminal behavior in any circumstance, we have started down a slippery slope that will undermine our entire legal justice system.

I have a shoebox in my basement that's filled with my parents' wedding photos. If someone comes into my house and takes them without my permission, that's burglary. It's burglary whether they're in a shoebox or a beautiful album, whether they're in a closet or a locked safe or a pile on the floor. They belong to me, and you don't have permission to take them, regardless of how stupidly I store them.

And if the shoebox were full of naked pictures of me? Same rule. The content of the pictures doesn't matter any more than the method of storage. They're mine. That's all that matters. And if you steal them, you are a thief.

Back to Jennifer Lawrence. I haven't seen the pictures, so I don't know what's in them, and I don't know anything about the cloud service she used to store them. I can tell you, however, that those pictures belong to her, and the hacker who took them without her permission is a thief. A twenty-first century thief, but still a thief.

And those of you who are saying it's her fault? That she shouldn't have taken naked pictures of herself? That she should not have stored them in the cloud, which she should have known would be insecure? That anyone who has nude photos taken of herself must be some sort of brazen, narcissistic hussy who was asking for it? Do you know what you are called?

You are called victim-blamers. You are conceptually indistinguishable from the people who think rape is okay because the girl was drunk or scantily clad, or who think the thief has a right to the bike because its owner was in too much of a hurry to lock it up, or who think my shoddy scotch storage justifies a burglary.

Let's stop blaming Jennifer Lawrence for owning nude pictures of herself. Maybe it was stupid and narcissistic, or maybe she had a damned good reason for owning those pictures. I simply don't know, it's none of my business, and it shouldn't matter. If it matters to you, know that the law says otherwise, and ask yourself why you care.

P.S. If you have my Macallan, I want it back. Thanks.