Sextortion - The Hybrid Cyber-Sex Crime
Sextortion - The Hybrid Cyber-Sex Crime
Sextortion - The Hybrid Cyber-Sex Crime
TECHNOLOGY
3-1-2020
Recommended Citation
Alessandra Carlton, Sextortion: The Hybrid "Cyber-Sex" Crime, 21 N.C. J.L. & TECH. 177 (2020).
Available at: https://scholarship.law.unc.edu/ncjolt/vol21/iss3/5
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NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY
VOLUME 21, ISSUE 3: MARCH 2020
Alessandra Carlton *
I. INTRODUCTION ...................................................................178
II. SHEDDING LIGHT ON SEXTORTION ...................................180
A. The Crime: Sextortion vs. Revenge Porn ......................181
B. Methods of Sextortion and the Black-Market Business 182
C. The Victims and Harm of Sextortion.............................187
III. SEXTORTION LAWS (AND FLAWS) .....................................190
A. The “Grab Bag” Approach to Prosecuting Sextortion 190
*
J.D. Candidate, University of North Carolina School of Law, 2021. The
author would like to thank Professor Joseph E. Kennedy for his insight, as well as
Erin Larson from the NC JOLT Board of Advisors and all of the NC JOLT editors
and staff, particularly Hannah Petersen and Ashle Page, for their assistance
throughout the editorial process.
177
178 N.C. J.L. & TECH. [VOL. 21: 177
I. INTRODUCTION
One year before Cassidy Wolf was crowned Miss Teen USA,
someone hacked into her computer’s webcam. 1 The perpetrator was
Jared James Abrahams, a nineteen-year-old computer science
student and Wolf’s former high school classmate. 2 Unbeknownst to
Wolf, Abrahams monitored her through the webcam for months and
took numerous photos of her undressing in her bedroom. 3 Abrahams
emailed Wolf, threatening to post the photos on the internet,
including on all of her social media accounts, unless she either sent
him sexually explicit photos and videos, or engaged in sexual acts
using Skype. 4 At trial, Abrahams pled guilty to three counts of
extortion and one count of unauthorized access of a computer. 5
Abrahams admitted that he had access to as many as 150 electronic
1
Violet Blue, The FBI Recommends You Cover Your Laptop’s Webcam, for
Good Reason, ENGADGET (Sept. 23, 2016), https://www.engadget.com/
2016/09/23/the-fbi-recommends-you-cover-your-laptops-webcam-good-reasons/
[https://perma.cc/ZE39-9KL5].
2
Id.; Miss Teen USA Hacker Pleads Guilty to ‘Sextortion’ Threats, BBC (Nov.
13, 2013), https://www.bbc.com/news/technology-24929916 [https://perma.cc/
NWQ6-TK45].
3
Lauren Weigle, Jared James Abrahams – Cassidy Wolf’s Webcam Computer
Hacker, HEAVY. (Mar. 4, 2015), https://heavy.com/entertainment/2015/03/jared-
james-abrahams-twitter-cassidy-wolfs-computer-hacker-stalker-webcam-
sextortion/ [https://perma.cc/348Z-NS45].
4
Id.
5
Id.
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 179
the images or merely claim to possess the images. 17 This article has
adopted a broad view, combining the two popular approaches. But,
throughout the discussion of various fact patterns, a reoccurring
issue arises as to how lawmakers differ on willingness to define this
crime in order to hold perpetrators accountable.
17
This tends to come up in the mass-produced phishing sextortions. See
generally Thomas Brewster, Lying Sextortion Scammers Score $250,000 After
Sending Victims Their Own Hacked Passwords, FORBES (July 31, 2018),
https://www.forbes.com/sites/thomasbrewster/2018/07/31/sextortion-scam-with-
hacked-passwords-scores-250000-dollars-for-cybercriminals/#41edeff0df16
[https://perma.cc/6L34-HPKC] (describing how scammers use old passwords to
trick people into believing their personal material is at risk).
18
See Danielle Keats Citron, Sexual Privacy, 128 YALE L.J. 1870, 1918 (2019);
see also 46 States + DC + One Territory Now Have Revenge Porn Laws, CYBER
CIVIL RIGHTS INITIATIVE (2019), https://www.cybercivilrights.org/
revenge-porn-laws/ [https://perma.cc/6HPU-K3HY] (“The term ‘revenge porn,’
though frequently used, is somewhat misleading. Many perpetrators are not
motivated by revenge or by any personal feelings toward the victim. A more
accurate term is nonconsensual pornography (NCP), defined as the distribution of
sexually graphic images of individuals without their consent.”)
19
As previously discussed, sextortion typically, but does not always, include a
threat to disseminate the victim’s private sexual images. See Wittes et al., supra
note 10.
20
See Citron, supra note 18.
182 N.C. J.L. & TECH. [VOL. 21: 177
21
Wittes et al., supra note 10.
22
See Kari Paul, ‘I Was Humiliated’ — Online Dating Scammers Hold Nude
Photos for Ransom in ‘Sextortion’, MARKETWATCH (Aug. 23, 2019),
https://www.marketwatch.com/story/i-was-humiliated-online-dating-scammers-
hold-nude-photos-for-ransom-in-sextortion-attacks-2019-03-06
[https://perma.cc/H6SZ-FHB7].
23
Id.
24
Id. (noting the victim did not report the crime and the actual identity of his
sextortionist is unknown).
25
Id.
26
Id.
27
Wittes et al., supra note 10.
28
Id.
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 183
29
How to Recognize and Avoid Phishing Scams, FED. TRADE COMM’N (May
2019), https://www.consumer.ftc.gov/articles/how-recognize-and-avoid-
phishing-scams [https://perma.cc/UDX3-7JP6].
30
Wittes et al., supra note 10 (“Ford had successfully hacked into 450
computers and threatened 75 victims at the time of his arrest.”).
31
Id. Luis Mijangos watched, listened, and recorded his victims; he was able to
track when they had viewed his threatening messages and see everything they
typed on their keyboards. Id. Mijangos kept detailed logs of his victims’ personal
information, and “investigators found more than 15,000 webcam-video captures,
900 audio recordings, and 13,000 screen captures on his computers.” Id.
32
SELLING “SLAVING”, supra note 9 (Cassidy Wolf’s sextortionist was also a
ratter, and he slaved the devices of 150 victims.).
33
Id. at 6 (“Perhaps the simplest and most popular slaving tool is a RAT. One
of the six kinds of Trojans, RATs are malicious code that can be disguised as
documents, photographs, videos, and songs to trick targets into downloading the
malware onto a device. Whether it is using the device’s functions or sifting
through files the user has stored—whatever [the device’s owner] can do, the ratter
can do.”).
34
See generally SELLING “SLAVING”, supra note 9.
184 N.C. J.L. & TECH. [VOL. 21: 177
35
Id. at 4.
36
Id. at 9; see also Andrew Silke, Webcams Taken Over by Hackers, Charity
Warns, BBC (June 20, 2013), https://www.bbc.com/news/uk-22967622
[https://perma.cc/B76X-SSSC].
37
Silke, supra note 36.
38
SELLING “SLAVING”, supra note 9, at 9.
39
Id. at 7.
40
Id.
41
Id. at 4.
42
See Adi Robertson, YouTube’s ‘Instructional Hacking’ Ban Threatens
Computer Security Teachers, VERGE (July 3, 2019), https://www.theverge.com/
2019/7/3/20681586/youtube-ban-instructional-hacking-phishing-videos-cyber-
weapons-lab-strike [https://perma.cc/RW67-T6MP].
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 185
43
In a survey of 13 to 25-year-old sextortion victims, 53% of victims complied
to stop the threats, but out of those who complied, only 37% of the sextortionists
actually stopped. Janis Wolnak & David Finkelhor, Sextortion: Findings from a
Survey of 1,631 Victims, U. OF N.H. 1, 37 (June 2016), https://www.thorn.org/wp-
content/uploads/2016/08/Sextortion_Report.pdf [https://perma.cc/GFX9-S7N4].
44
Christopher Boyd, Sextortion Bitcoin scam makes unwelcome return,
MALWAREBYTES LABS (Feb. 11, 2019), https://blog.malwarebytes.com/
cybercrime/2019/02/sextortion-bitcoin-scam-makes-unwelcome-return/
[https://perma.cc/8VRW-4UNH].
45
Id.
46
Dariusz Sankowski, The anatomy of a sextortion spam campaign, MIT TECH.
REV. (Aug. 19, 2019), https://www.technologyreview.com/s/614177/the-
anatomy-of-a-sextortion-spam-campaign/ [https://perma.cc/RC2E-Q32P].
47
Id.
48
Id.; see also Davey Winder, Inside One Of The Biggest Sextortion Scams:
450,000 Machines Send 30,000 Emails An Hour, FORBES (Oct. 16, 2019),
https://www.forbes.com/sites/daveywinder/2019/10/16/have-you-sent-15000-
sextortion-emails-today/#4e1ae2eb195e [https://perma.cc/XYJ5-3NL4]
(explaining that researchers who spent five months monitoring one botnet
operation found that it was capable of sending 30,000 emails an hour through the
186 N.C. J.L. & TECH. [VOL. 21: 177
use of 450,000 infected machines, and each spam campaign was capable of
reaching up to 27 million potential victims).
49
See Sankowski, supra note 46 (“Curiously, scammers do not charge more for
emails that contain the victim’s password or phone number.”).
50
Id.
51
See id.
52
Although actual success rates are mostly unknown, a study of one “sextortion
group” revealed that “more than 150 people have coughed up $250,000 in Bitcoin
for fear of their private Web browsing habits being exposed.” Thomas Brewster,
Lying Sextortion Scammers Score $250,000 After Sending Victims Their Own
Hacked Passwords, FORBES (July, 31, 2018),
https://www.forbes.com/sites/thomasbrewster/2018/07/31/sextortion-scam-with-
hacked-passwords-scores-250000-dollars-for-cybercriminals/#41edeff0df16
[https://perma.cc/6L34-HPKC].
53
Id.
54
See Sankowski, supra note 46.
55
Sextortion 101: What to Know and What to Do, COFENSE 1, 4 (2019),
https://cofense.com/wpcontent/uploads/2019/07/Sextortion-101.pdf?
utm_source=Sextortion+Web+Page&utm_medium=website&utm_campaign=20
19_Sextortion+Campaign+ [https://perma.cc/LLV2-9QDU].
56
See Sankowski, supra note 46.
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 187
57
Id.
58
Sextortion 101: What to Know and What to Do, supra note 55.
59
Again, this number represents attempted scams, not the actual number of
people who fell victim to the scams, which not clearly known.
60
Sextortion 101: What to Know and What to Do, supra note 55.
61
See id.
62
See Colby Walker, How to Fight Back Against Sextortion – and Avoid Being
a Victim, KSL NEWSRADIO (June 18, 2019),
https://kslnewsradio.com/1907066/how-to-fight-back-against-sextortion-and-
avoid-being-a-victim/? [https://perma.cc/BZU4-7YWM] (describing how a
famous former Disney star was hacked by a sextortionist); see also Sullivan, supra
note 14 (describing how a famous comedian was hacked by a sextortionist).
63
The National Strategy for Child Exploitation Prevention and Interdiction,
U.S. DEP’T OF JUSTICE 1, 75 (April 2016), https://www.justice.gov/
188 N.C. J.L. & TECH. [VOL. 21: 177
71
Id. (explaining that commonly, investigations “reveal that a single sextortion
offender has been communicating with hundreds of potential victims.”).
72
Id.
73
Wittes et al., supra note 10.
74
The National Strategy for Child Exploitation Prevention and Interdiction,
supra note 63, at 76.
75
Wittes et al., supra note 10.
76
See What is Sextortion?, supra note 10; see also The National Strategy for
Child Exploitation Prevention and Interdiction, supra note 63, at 15.
77
See Wittes et al., supra note 10.
78
See id.
79
See Citron, supra note 18, at 1875.
80
Id.
190 N.C. J.L. & TECH. [VOL. 21: 177
87
According to the Eighth Circuit, a sexual relationship is also considered a
“thing of value.” A Call to Action: Ending “Sextortion” in the Digital Age, supra
note 84 (affirming the defendant’s extortion conviction in which he covertly
filmed his wife in sexual positions and then, after she decided to divorce him,
threatened to release the material unless she continued the relationship).
88
Wittes et al., supra note 10. There could be an enhanced sentence under
§ 875(b) if the sextortionist were to threaten bodily injury to the victim, but this
scenario does not match the “prototype” sextortion case.
89
But see Greenburg, supra note 85 (explaining that victims may be able to
seek civil remedies if actual disclosure occurs, because “[a]bout a dozen state laws
currently allow for a private right of action against those who disclose intimate
images without consent”).
90
Wittes et al., supra note 10. Sextortion, like revenge porn, is sometimes
referred to as a “virtual sexual assault.” Id. However, since it is “virtual” and not
“physical,” it does not fall under traditional sexual assault crimes. Id.
91
See id.
92
18 U.S.C. § 2251 (2018); 18 U.S.C. § 2252 (2018).
93
See Citizens Guide to U.S. Federal Law on Child Pornography, U.S. DEP’T
OF JUSTICE, https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-
law-child-pornography [https://perma.cc/LR6R-STZN].
192 N.C. J.L. & TECH. [VOL. 21: 177
94
Stalking charges are more typical when the sextortionist has a personal
connection to the victim. See Wittes et al., supra note 10. For example,
sextortionist Adam Savadar, who targeted women he knew from high school, was
sentenced to 2.5 years in prison on one count of cyberstalking and one count of
sextortion. Id.
95
See Quinta Jurecic, A Turning Point for Sextortion, ATLANTIC (Feb. 11,
2019), https://www.theatlantic.com/ideas/archive/2019/02/turning-point-
sextortion/582466/ [https://perma.cc/8K4V-35N7].
96
Wittes et al., supra note 10.
97
Id.
98
Id. (“The reason is that federal child pornography laws carry particularly stiff
sentences, far stiffer than those at issue with stalking, extortion, or computer
intrusion laws. The result is that of those cases that involved minor victims and
did not produce a life sentence, the sentencing range varied from seven months to
139 years imprisonment, with a median of 288 months (24 years) and a mean
sentence of 369 months (31 years). Cases that involved only adult victims, by
contrast, involved sentencing ranges from one month to 6.5 years imprisonment,
a median sentence of only 40 months and a mean sentence of 38 months.”).
99
Id.
100
Id.
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 193
101
Id.
102
Id.
103
Id.
104
Id.
105
Id.
106
Id. (“The disparities between the number of identified victims and the
number estimated can be extreme.”).
107
See A Call to Action: Ending “Sextortion” in the Digital Age, supra note 84
(describing a sextortion case in Wisconsin in which the sextortionist, who
threatened a minor victim, was charged with misdemeanors and received one year
of probation, but prosecutors had “to become pretty creative in finding statutes
that deal with this”).
108
Jean Gazis, Utah and Arkansas First States to Enact Legislation
Criminalizing Cyber-Sexual Extortion (“Sextortion”), LEGAL MOMENTUM (Mar.
31, 2017), https://www.legalmomentum.org/press/utah-and-arkansas-first-states-
enact-legislation-criminalizing-cyber-sexual-extortion- [https://perma.cc/T43N-
9VDJ] (recognizing that Arkansas passed its sextortion law just five days after
Utah’s passed).
194 N.C. J.L. & TECH. [VOL. 21: 177
109
UTAH CODE § 76-5b-204(2) (2017).
110
Brittany Johnson, Does Utah’s Sextortion Law Fall Short of Protecting All
Victims?, ABC NEWS (Aug. 15, 2019), https://www.abc4.com/news/does-utahs-
sextortion-law-fall-short-of-protecting-all-victims/ [https://perma.cc/PYP2-
6WZA] (explaining that, in the case of one juvenile sextortionist with 50 victims,
he could not be charged under Utah’s sextortion law for most of his victims since
he was under 18 the time of the crimes).
111
See Jennifer Gardiner, Courts: Missionary Sent Home After Police Discover
He Had Sexually Exploited Over 50 Teen Girls, ABC NEWS (July 2, 2019),
https://www.abc4.com/ap-state/utah/courts-missionary-sent-home-after-police-
discover-he-had-sexually-exploited-over-50-teen-girls/ [https://perma.cc/PC2R-
YLE6] (explaining that the juvenile sextortionist in Utah was charged with
exploitation of minors since many of his victims were teenage girls).
112
Sim Gill, the Salt Lake County District Attorney in Utah, prosecutes
sextortion cases and believes that it is a “simple fix” to include minors and bring
justice to these victims. Johnson, supra note 111. The Utah law’s sponsor, Senator
Curt Bramble, said it was worth considering given that other statutes consider
“egregious or aggravating circumstances” to determine if a minor could be tried
as an adult. Id.
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 195
113
Greenberg, supra note 85.
114
Id. Significantly, several revenge porn laws have been challenged for
violating free speech under the first amendment. Id. This development is relevant
for cases in which sextortion victims may inevitably become revenge porn
victims, and thus turn to dissemination laws if the sextortionists’ threats are
carried out. But, in all likelihood, as long as the revenge porn laws are narrowly
tailored, they should withstand first amendment scrutiny, and this issue may never
arise. See Nicole Ligon, Revenge Porn Can Be Outlawed Under The First
Amendment, LAW360 (July 11, 2019), https://www.law360.com/articles/
1176991/revenge-porn-can-be-outlawed-under-the-first-amendment
[https://perma.cc/99QM-ZH68].
196 N.C. J.L. & TECH. [VOL. 21: 177
Twitter. 115 Under these facts, the crime began as sextortion, and
when the victim did not comply, it evolved into revenge porn.
However, if a confused prosecutor charged this perpetrator only
under a narrowly tailored sextortion statute, the defendant could
argue that he “did not engage in ‘sextortion’ because [he] never
demanded that [the victim] send [him] additional topless photos or
any money or property in exchange for refraining from posting her
photograph[.]” 116 Seemingly, under a typical sextortion law like
Utah’s, 117 the defendant would walk free.
But sextortionists should not be able to escape accountability
based on ambiguities in this developing area of the law. Combining
sextortion and revenge porn laws into one statute, at the state or
federal level, could provide clarity. Critics of this method from the
Brookings Institution, however, argue that sextortion deserves its
own statute, because they believe the crime in sextortion is the
“creation or production” of the sexual material, not merely the threat
to distribute it. 118 This again depends on how narrowly a legislature
decides to define sextortion, as it ignores when existing sexual
material is stolen from a victim, and Brookings’ approach may
trivialize the harm innate to the threat of distribution. Arguably, the
menacing threat to release a victim’s sexual images accompanied by
a coercive demand for money or more material, is just as violative
as actual dissemination. Likewise, a sextortionist is just as morally
culpable as a perpetrator of revenge porn.
C. A Federal Proposal
Federal law could soon follow the state legislatures’ footsteps
by addressing both sextortion and revenge porn. The “Stopping
Harmful Image Exploitation and Limiting Distribution”
115
These facts are actually based on a civil matter. See Backlund v. Stone, No.
B235173, 2012 Cal. App. Unpub. LEXIS 6467, at *1 (Sept. 4, 2012).
116
Jeff Kosseff, Cybersecurity of the Person, 17 FIRST AMEND. L. REV. 343,
349 (2018).
117
UTAH CODE § 76-5b-204(2) (2017).
118
Benjamin Wittes et al., Closing the Sextortion Sentencing Gap: A Legislative
Proposal, BROOKINGS INST. (May 11, 2016), https://www.brookings.edu/
research/closing-the-sextortion-sentencing-gap-a-legislative-proposal/
[https://perma.cc/CM9B-73FW].
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 197
119
SHIELD Act, H.R. 2896, 116th Cong. (2019).
120
Id. Notice that the proposal anticipates possible First Amendment issues by
allowing for a “public concern” exception to the possible protected speech in
nonconsensual dissemination of sexual images. See generally “Revenge Porn”
Law Survives Constitutional Challenge in Vermont, CYBER C.R. INITIATIVE (Oct.
19, 2018), https://www.cybercivilrights.org/revenge-porn-law-survives-
constitutional-challenge-vermont/ [https://perma.cc/E3BK-BUZH].
198 N.C. J.L. & TECH. [VOL. 21: 177
121
Overcriminalization, HERITAGE FOUND. (2019), https://www.heritage.org/
crime-and-justice/heritage-explains/overcriminalization [https://perma.cc/7RR5-
KPNP].
122
Id.
123
See id.; see also MERRIAM-WEBSTER INC., malum in se, THE MERRIAM-
WEBSTER.COM LEGAL DICTIONARY, https://www.merriam-webster.com/legal/
malum%20in%20se [https://perma.cc/52V2-X9BW] (last visited Jan. 10, 2020)
(“[A]n offense that is evil or wrong from its own nature irrespective of statute —
often used with a preceding noun (as crime or act)”).
124
See Overcriminalization, supra note 121.
125
For this argument in the context of revenge porn, see, e.g., Sarah Jeong,
Revenge Porn Is Bad. Criminalizing It Is Worse, WIRED (Oct. 28, 2013),
https://www.wired.com/2013/10/why-criminalizing-revenge-porn-is-a-bad-idea
[https://perma.cc/5J3M-PLRR] (arguing that the criminalization of revenge porn
is not necessary because “a number of legal remedies against both vengeful exes
and website operators already exist”).
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 199
130
See Michael H. Keller & Gabriel J.X. Dance, The Internet is Overrun with
Images of Child Sexual Abuse. What Went Wrong?, N.Y. TIMES (Sept. 28, 2019),
https://www.nytimes.com/interactive/2019/09/28/us/child-sex-abuse.
html?module=inline [https://perma.cc/69QR-DWC5] (“Hany Farid, who worked
with Microsoft to develop technology in 2009 for detecting child sexual abuse
material, said tech companies had been reluctant for years to dig too deeply . . .
‘The companies knew the house was full of roaches, and they were scared to turn
the lights on,’ he said. ‘And then when they did turn the lights on, it was worse
than they thought.’”).
131
See Introducing Echo Show 5 – Compact Smart Display with Alexa –
Charcoal, AMAZON, https://www.amazon.com/Introducing-Echo-Show-
Compact-Charcoal/dp/B07HZLHPKP/ref=sr_1_2?crid=
32BRFYDR7063S&keywords=amazon+technology&qid=1567562407&s=gate
way&sprefix=amazon+tech%2Caps%2C143&sr=8-2 [https://perma.cc/K9FE-
DHK2] (last visited Oct. 28, 2019).
132
How Big Tech Is Finally Tackling Cybersecurity, CB INSIGHTS (Mar. 27,
2019), https://www.cbinsights.com/research/facebook-amazon-microsoft-
google-apple-cybersecurity/ [https://perma.cc/X7YG-XTXY].
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 201
138
This is according to a total of 1,428 reports between 2013 and 2016, and
NCMEC notes that there has been a measured increase in total reports each year
since they began tracking sextortion in 2013. TRENDS IDENTIFIED IN
CYBERTIPLINE SEXTORTION REPORTS, supra note 67.
139
Gabriel J.X. Dance & Michael H. Keller, An Explosion in Online Child Sex
Abuse: What You Need to Know, N.Y. TIMES (Sept. 30, 2019),
https://www.nytimes.com/2019/09/29/us/takeaways-child-sex-abuse.html
[https://perma.cc/AV7C-PKG3]. See also Keller & Dance, supra note 130
(“Reports to the authorities typically contain more than one image, and last year
encompassed the record 45 million photos and videos, according to the National
Center for Missing and Exploited Children.”).
140
Dance & Keller, supra note 139 (Mark Zuckerberg said, “Encryption is a
powerful tool for privacy . . . but that includes the privacy of people doing bad
things.”).
141
Josh Constine, WhatsApp Has an Encrypted Child Abuse Problem,
TECHCRUNCH (Dec. 20, 2018), https://techcrunch.com/2018/12/20/whatsapp-
pornography/ [https://perma.cc/3X4J-WBMH].
142
Newton, supra note 136.
143
Unfortunately, this has not stopped predators from creating and sharing child
exploitative images through the app. Constine, supra note 141. If the accounts do
not have public names or photos indicating that they share child abuse content,
they could still be reported and investigated by WhatsApp employees, but there
is the potential for covert pedophilia groups. Id. Although WhatsApp does not
allow its users to search for groups to join, third party applications have become
a resource for predators to find these private groups. Id.
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 203
144
See id. This question may solve itself when FB launches its new
nonconsensual-pornography-detecting AI. See Facebook readies AI tech to
combat ‘revenge porn’, supra note 133.
145
Newton, supra note 136.
146
Zuckerberg, supra note 134.
147
Zak Doffman, Snapchat Has Become A ‘Haven For Child Abuse’ With Its
‘Self-Destructing Messages’, FORBES (May 26, 2019), https://www.forbes.com/
sites/zakdoffman/2019/05/26/snapchats-self-destructing-messages-have-created-
a-haven-for-child-abuse/#8366782399a1 [https://perma.cc/869X-6KCY].
148
Id.
149
Keller & Dance, supra note 130 (“According to law enforcement, when
requests are made to the company, Snap often replies that it has no additional
information.”).
150
Doffman, supra note 147.
204 N.C. J.L. & TECH. [VOL. 21: 177
reach companies too late” given the massive number of reports 157 to
authorities.
Unfortunately, cybercriminals who traffic child exploitation
imagery are “on the cutting edge of technology,” according to a
former lawyer at the National Security Agency and current
cybersecurity researcher at the Brookings Institution. 158 In general,
availability of technology has only made perpetrators of internet
crimes more advanced, 159 often leaving law enforcement far
behind. 160 Law enforcement’s lack of resources 161 have put tech
157
Id. (Notwithstanding potential reports of adult abusive imagery, Facebook
was credited with supplying “nearly 12 million of the 18.4 million worldwide
reports of child sexual abuse material.”). There are no statistics about the reports
of sexually exploitative adult imagery, but Facebook does provide methods to
report them. See Community Standards, FACEBOOK (2019),
https://www.facebook.com/communitystandards/sexual_exploitation_adults
[https://perma.cc/F7U9-HUTC].
158
Id.
159
Id. (“Offenders can cover their tracks by connecting to virtual private
networks, which mask their locations; deploying encryption techniques, which
can hide their messages and make their hard drives impenetrable; and posting on
the dark web, which is inaccessible to conventional browsers.”).
160
FBI cyber agent Scott Aken, talking about hackers and ratters in particular,
said, “Law enforcement just isn’t equipped at this stage of the game to keep up
with this stuff as fast as it’s changing. People aren’t trained enough. They don’t
have the manpower to go after the people that want to abuse the technology that
was originally meant for good and is now being used for evil.” SELLING
“SLAVING”, supra note 9, at 12.
161
See Nick Selby, Local Police Don’t go After Most Cybercriminals. We Need
Better Training, WASH. POST (Apr. 21, 2017), https://www.washingtonpost.com/
posteverything/wp/2017/04/21/local-police-dont-go-after-most-cybercriminals-
we-need-better-training/ [https://perma.cc/6NLT-Q8BP]. In general, there is not
much focus on cybercrimes at the local or state level since cybercrimes have, since
9/11, been viewed as the “feds’ problem” by local and state police. Id. Because of
this, training and teams are not typically created (with exceptions in large urban
areas). Id. If cybercrime investigators do exist, they typically focus their energy
and resources on child exploitation. Id. Also, many local cops don’t take
cybercrimes as seriously, and want to focus on “‘real’ police work.” Id. But see
Wittes et al., supra note 10 (arguing these cases may be best handled at the federal
level since they are “generally non-local and often require[] complex
interjurisdictional machinations and technical forensics” and federal authorities
are “better positioned for interstate and international investigations than state or
local authorities”).
206 N.C. J.L. & TECH. [VOL. 21: 177
162
See Keller & Dance, supra note 130. In addition to the complaints about
Snapchat, Tumblr, which has switched ownership more than once in the past few
years, is notoriously the worst offender, and police also complain that Bing’s
reports “lack[] essential information, making investigations difficult, if not
impossible.” Id.
163
In 2016, a federal court held that the NCMEC, though private, “qualified
legally as a government entity because it performed a number of essential
government functions,” specifically in investigating child pornography tips.
Keller & Dance, supra note 130; Tim Cushing, Court Says Child Porn
Clearinghouse Acts as A Government Entity, Cannot Perform ‘Private Searches’,
TECHDIRT (Aug. 9, 2016), https://www.techdirt.com/articles/
20160809/07551035194/court-says-child-porn-clearinghouse-acts-as-
government-entity-cannot-perform-private-searches.shtml
[https://perma.cc/6LFB-877D]. Social media companies like Facebook have in
the past worked very closely with nonprofits, including NCMEC, when reporting
crimes, but this ruling could give tech companies a reason to distance themselves
from organizations considered government entities to prevent the same from
happening to them. See Keller & Dance, supra note 130.
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 207
164
Alina Selyukh, Section 230: A Key Legal Shield For Facebook, Google Is
About To Change, NPR (Mar. 21, 2018), https://www.npr.org/sections/
alltechconsidered/2018/03/21/591622450/section-230-a-key-legal-shield-for-
facebook-google-is-about-to-change [https://perma.cc/32DS-2Z4L]. In general,
Section 230 grants immunity for internet platforms when illegal content is posted
on the platform by a third party; for an in-depth discussion of Section 230, see
Claudia Catalano, Annotation, Validity, Construction, and Application of
Immunity Provisions of Communications Decency Act, 47 U.S.C.A. § 230, 52
A.L.R. Fed. 2d 37 (2011).
165
Keller & Dance, supra note 130.
166
See id.
167
Sextortion 101: What to Know and What to Do, supra note 55.
208 N.C. J.L. & TECH. [VOL. 21: 177
Congress, that would likely require amending Section 230. The key
to getting such an amendment passed is for Congress to work closely
with internet and tech giants, to assure their support of such a law. 168
It is not an impossible task, because the Internet Association
recently supported an amendment to allow state and civil lawsuits
against sites for “knowingly assisting, supporting or facilitating”
online sex trafficking. 169 A common counterargument is that
creating liability for tech companies actually creates an incentive for
them to ignore the criminal activity on their sites, but the purpose
behind lessening liability for internet companies under Section 230
was to encourage these companies to responsibly police their
platforms, and internet giants have stretched this statute beyond its
legislative intentions. 170 Perhaps Congress could negotiate a mutual
agreement for internet companies to use their resources to create
more effective AI or tip lines to automatically report instances of
sextortion to a non-profit clearinghouse, as demonstrated below,
instead of instituting harsh liability.
A. Societal Perception
Given that sextortion is not typically viewed as a “sex crime,” it
is important to consider the effect that victim-blaming has on the
general secrecy of the crime. It is not uncommon in the media for
the public to victim-blame sextortion victims. 171 A legal approach to
this area of law could consider whether the victim “assumes the risk”
when storing explicit photos on tech-based platforms that are
168
See Selyukh, supra note 164.
169
Id.
170
Id.
171
See Abby Webb, Why Bella Thorne Deserves Support, Not Shame, For
Sharing Nudes, STUDY BREAKS (July 10, 2019), https://studybreaks.com/
thoughts/bella-thorne-nudes-support-not-shame/ [https://perma.cc/S7DW-
78XX]. In particular, Whoopi Goldberg did not sympathize with Bella Thorne, a
celebrity sextortion victim, saying on her talk show, “If you’re famous, I don’t
care how old you are, you don’t get to take nude pictures of yourself . . . . Once
you take that picture, it goes into the cloud, and it’s available to any hacker who
wants it, and if you don’t know that in 2019 . . . I’m sorry, . . . you don’t get to do
that.” Id.
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 209
172
See generally Aya Gruber, Victim Wrongs: The Case for a General Criminal
Defense Based on Wrongful Victim Behavior in an Era of Victims’ Rights, 76
TEMP. L. REV. 645 (2003) (clarifying some of the stigma around “victim-blaming”
and discussing the role of victim liability in criminal law, but rejecting the
suggestion that the principles of assumption of risk or contributory negligence
should be imported from tort law).
173
Id. This comes up when the victim’s personal, sexual photos are unlawfully
obtained by the sextortionist, and this method of sextortion appears common
among celebrity victims. See Webb, supra note 171; see also Sullivan, supra note
14. Both Thorne and Cummings chose to post their own nude photos instead of
comply with their sextortionists’ demands. Id.
174
See Rachel Budde Patton, Taking the Sting Out of Revenge Porn: Using
Criminal Statutes to Safeguard Sexual Autonomy in the Digital Age, 16 GEO. J.
GENDER & L. 407, 419 (2015) (Slut-shaming describes the act of criticizing or
denigrating an individual based on her perceived sexual history, behavior, or
availability as a sexual partner in a way meant to bring shame to the individual.”).
175
Webb, supra note 171 (Sherry Hamby, a psychology professor explains that,
“[t]here’s just a really strong need to believe that we all deserve our outcomes and
consequences . . . . In other cultures, where sometimes because of war or poverty
or . . . even just because of a strong thread of fatalism in the culture, it’s a lot better
recognized that sometimes bad things happen to good people[.]”).
176
The concept of naked imagery as a form of expression is centuries old,
stemming from its popularity in various artforms. See Maude Bass-Krueger,
210 N.C. J.L. & TECH. [VOL. 21: 177
B. Awareness Campaigns
Public awareness campaigns have recently become more
prominent, but their effectiveness remains unclear, and
Congressional intervention through clearly defining and creating a
comprehensive legal process for sextortion victims could help bring
these varying efforts into consensus. Public figures are anomalous
sextortion victims, because they are “both particularly vulnerable to
blackmail and particularly resistant to it[,]” 181 but they could have
an important role in public awareness of the pervasiveness of this
crime. In one example, Jeff Bezos, the CEO of Amazon, fought back
against his sextortionist by exposing the threatening messages in a
public blog post. 182 Two other sextortion victims, comedian Whitney
Cummings and actress Bella Thorne refused to comply with their
sextortionists’ demands, and proactively released their own nude
179
Pat Reavy, Utah Family Sharing Sextortion Suicide Story ‘Likely Saved
Some Lives,’ Police Say, DESERETNEWS (Apr. 10, 2019),
https://www.deseret.com/2019/4/10/20670612/utah-family-sharing-sextortion-
suicide-story-likely-saved-some-lives-police-say#davis-county-sheriffs-
detective-john-peirce-works-in-his-office-at-the-davis-county-justice-center-in-
farmington-on-monday-april-1-2019-peirce-worked-on-the-tevan-tobler-case
[https://perma.cc/572N-LZJ4].
180
Id.
181
Jurecic, supra note 95.
182
“Of course I don’t want personal photos published, but I also won’t
participate in [the National Enquirer’s] well-known practice of blackmail,
political favors, political attacks, and corruption.” Jeff Bezos, No Thank You, Mr.
Pecker, MEDIUM (Feb. 7, 2019), https://medium.com/@jeffreypbezos/no-thank-
you-mr-pecker-146e3922310f [https://perma.cc/5RMP-RVR4] (explaining that
AMI, the owner of the National Enquirer, threatened to release intimate images
that Bezos took of himself if he failed to make a public statement, that Bezos
perceived to be a lie, about the political nature of AMI).
212 N.C. J.L. & TECH. [VOL. 21: 177
183
Webb, supra note 171; Sullivan, supra note 14. But, although some may
perceive these celebrity women posting their own nude photos as empowering,
the threat of this post is exactly what keeps the average sextortion victim silent.
184
Victims are in a better position when they can overcome their shame or
embarrassment and turn to a third party, often a parent or a friend, who can report
the crime to law enforcement. Wittes et al., supra note 10. In a survey conducted
by Thorn, one in three sextortion victims (ages 13 to 25) never told anyone, but
out of the victims who disclosed, 53% told a friend, and only 17% told law
enforcement. Sextortion Infographic, THORN (2018), https://www.thorn.org/wp-
content/uploads/2018/10/Sextortion-Infographic-2018-Findings-V2.pdf
[https://perma.cc/D732-BUPL].
185
See Stop Sextortion, FBI (Sept. 3, 2019), https://www.fbi.gov/news/
stories/stop-sextortion-youth-face-risk-online-090319 [https://perma.cc/9KQG-
PBUE].
186
Id.
187
Id.
188
Id.
189
Not to be confused with Bella Thorne, who is not affiliated with this
organization.
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 213
190
Sextortion. Yup. It’s a Thing., THORN (2018),
https://www.stopsextortion.com/ [https://perma.cc/GT2H-STQT].
191
Id.
192
See supra citations accompanying note 76.
193
See The National Center for Missing & Exploited Children Mission and
History, NAT’L CTR. FOR MISSING & EXPLOITED CHILDREN,
https://web.archive.org/web/20121029010231/http://www.missingkids.com/
missingkids/servlet/PageServlet?LanguageCountry=en_US&PageId=4362
[https://perma.cc/H7UH-L2BT] “(In 1984, the U.S. Congress passed the Missing
Children’s Assistance Act which established a National Resource Center and
Clearinghouse on Missing and Exploited Children. The National Center for
Missing & Exploited Children was designated to fulfill this role.”).
214 N.C. J.L. & TECH. [VOL. 21: 177
VI. CONCLUSION
Sextortion is simply not discussed enough. Everyone is at risk,
and its violent impact on children is especially severe. Sextortion
has the potential to be an extremely profitable internet crime as
sextortionists continue to manipulate technological advancements
and societal stigma to their advantage. The simple truth is that silent
victims cannot rely on law enforcement to catch sextortionists, and
sadly, even for victims who have the courage to come forward,
prosecutors cannot always adequately punish offenders due to the
confusion in this developing area of law. The demise of sextortion
depends on a proactive federal government, societal awareness, and
194
Right now, the government does not collect data on sextortion specifically,
since data collection is based on violations of federal statutes. See Wittes et al.,
supra note 10. The NCMEC is a clearinghouse that provides resources, collects
statistics, and acts as a third party to report missing children and exploited children
to the FBI through the use of a CyberTipline service. See About NCMEC, NAT’L
CTR. FOR MISSING & EXPLOITED CHILDREN,
http://www.missingkids.com/footer/media/keyfacts [https://perma.cc/2BGF-
G5S5].
195
Since the SHIELD Act incorporates both revenge porn and sextortion under
the same statute, this clearinghouse could also perform this same role for revenge
porn crimes, killing two birds with one stone.
MAR. 2020] Sextortion: The Hybrid "Cyber-Sex" Crime 215