By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — State lawmakers are moving to close a technologically created loophole in a law designed to prevent victims against “revenge porn.”

But the measure, approved by an 8-1 margin Wednesday by the House Judiciary Committee, has raised concerns in an effort to plug that loophole it subjects more people to possible felony charges.

A 2016 Arizona law makes it a felony to distribute nude or sexually explicit photos of others without their consent. These often arise from situations when a relationship ends and the jilted partner decides to make public naked photos of the other person — photos that may have been made with that person’s consent but clearly were not meant to be shared.

What made it more problematic, according to Sen. J.D. Mesnard, who crafted the original law, was the ability to not just create the images with smart phones but be able to share them widely on the internet.

But on Wednesday, the Chandler Republican said yet another advancement has created a new problem: the “exciting and frightening technology” of artificial intelligence.

Mesnard said that scientific leap now allows someone to “generate ... very realistic nude pictures that are then shared for the purpose of hurting somebody.” But he said since what’s being shared online isn’t an actual photo of someone that isn’t forbidden under the existing law.

His Senate Bill 1462 is designed to close that gap.

“A very realistic-looking nude picture, but that’s not technically of the person but is used to harass and hurt the person, generally a woman, could be captured in this statute,” Mesnard explained to lawmakers in explaining the need for the change.

Mesnard could not get the measure approved as originally crafted after it raised concerns from the Arizona chapter of the American Civil Liberties Union.

“I think the bill violates the First Amendment without some sort of protection for persons who are engaged in parody, artistic expression, political speech,” said lobbyist Marilyn Rodriguez. She said courts have concluded that these are protected — even if it is “a vulgar image of a politician.”

“Those images may harm a politician or a famous person but can also be protected speech,” she said. Rodriguez said she doubts that is what Mesnard is trying to prevent.

Mesnard agreed to alter the measure to create exceptions for “an image made in the public interest, including scientific or education activities, a newsworthy or on (an) issue of public concern.”

But Rodriguez made it clear her organization still has concerns about the breadth of the measure — especially the possibility of someone being subject to a prison term of 2.5 years.

She said it is so broad that it applies to someone who takes a picture of someone else who the person sees or knows and digitally altering it.

“It’s far less intimate,” Rodriguez said, than the original law that involves sending out photos that someone has shared in a relationship.

“I certainly wonder if it deserves a class 4 felony designation,” she said. “It certainly seems like it’s criminalizing far more conduct than just the original revenge porn statute.”

And there’s something else.

“We are really concerned that young people who are prone to mistakes and lack access to sexual education and education about the internet could be facing class 4 felonies for jokes,” she said.

The ACLU isn’t the only one worried about the breadth of the bill.

Kathryn Krejci, a volunteer attorney with Arizona Attorney for Criminal Justice, pointed out the original revenge porn law required prosecutors to prove the person in the image had “a reasonable expectation of privacy.” But Krejci, whose organization is composed of lawyers who defend people accused of crimes, told lawmakers that SB 1462 removes that requirement — and in a way that would allow charges to be brought against people who distribute images where the person in the photo had no such expectation.

Mesnard, however, said that change applies only to digitally created images. He said since those depicted had no way of knowing someone was crafting the photo there would be no way for them to have a reasonable expectation of privacy.

Not everyone on the House Judiciary Committee was buying that explanation — or convinced what Mesnard is proposing is just a minor change in the law.
Rep. Alexander Kolodin said he agrees with Krejci’s interpretation that the legislation would make criminals out of those who share images where the person depicted has no expectation of privacy.

Consider, said the Scottsdale Republican, a scenario where he might decide to “tear naked through the floor of the House” and the act was captured by a news reporter on camera.

“That would then be a crime even though I had no reasonable expectation of privacy because I was on the floor of the House?” Kolodin asked as he cast the lone dissenting vote on the measure.

The measure, which already has been approved by the Senate, now goes to the full House.