According to reports, the Naval Criminal Investigative Service is probing allegations against the Marines that they secretly shared naked photos of female service members on boards and in private group chats. The Naval Criminal Investigative Services (NCIS) has opened an investigation into a secret Facebook page where an unknown number of Marines were allegedly posting nude photos of former and current female marines, as well as other service members. Most of the photos were taken without their knowledge, CNN reported.
The private Facebook group called “Marines United” had a link to a Google Drive folder. The folder contained nude photos. Members running the page solicited others to submit photos of women without their knowledge. At the request of the military, the cloud storage folder on the site has been removed. According to CNN, a former Marine originally brought the matter to the attention of the Marine Corps. The Defense Department said that it is unclear how many current and former Marines may be involved in potential wrongdoing.
Recently, states have been passing legislation which criminalizes the conduct of posting nude photographs without permission. These states include New Jersey, California, Idaho, Utah, and Wisconsin, other states are also considering passing similar laws. In these situations where privacy has been violated, the victims rely on various criminal statutes to prosecute the perpetrators. A couple of federal laws may apply, and targeted federal legislation is in the works. Finally, a variety of civil responses may be employed by the determined victim.
Many are questioning whether or not Facebook can be held civilly liable for allowing the pictures to be posted, especially since the new story has gained notoriety. However, Section 230 of the U.S. Code may cause the victims some legal hurdles in their efforts. Section 230 says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230). In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. The protected intermediaries include not only regular Internet Service Providers (ISPs), but also a range of “interactive computer service providers,” including basically any online service that publishes third-party content. Though there are important exceptions for certain criminal and intellectual property-based claims, CDA 230 creates a broad protection that has allowed innovation and free speech online to flourish. There is a precedent in the First Circuit’s ruling in Doe v. Backpage dictating that Section 230 protects how websites sites “structure and operate” themselves.
However, it is likely the marines can be prosecuted criminally. For example, New Jersey’s invasion of privacy law, enacted in 2004, prohibits selling, providing, publishing, distributing, or otherwise disseminating nude or sexual photos of another person without that person’s permission (the penalty is a three-to-five year prison sentence or a fine up to $30,000). Wisconsin’s statute is similar (nine months’ imprisonment, and/or a fine up to $10,000), as is Idaho’s (five years imprisonment and/or a fine up to $50,000). (N.J. Stat. Ann. § 2C:14-9; Wis. Stat. Ann. §§ 942.09(1)(bn), (3m)(a); Id. Code Ann. § 18-6609(2)(b).
Because these Marines are likely in different states (some without laws prohibiting such conduct), they may instead be charged with criminal harassment or disorderly conduct. This seems to be the trend in courtrooms around the country, at least until the law catches up with the technology. Furthermore, no specific Federal law targets this type of behavior yet. However, a bill introduced by Representative Jackie Speier (D-Calif) in 2016 (and slated for reintroduction this year) attempts to do just that. It would make it illegal to “…knowingly distribute a private, visual depiction of a person’s intimate parts or of a person engaging in sexually explicit conduct, with reckless disregard for the person’s lack of consent to the distribution, and for other purposes.”
“We are thankful that Thomas Brennan, a Marine veteran, notified the Marine Corps and NCIS about what he witnessed on the ‘Marines United’ page. It allowed us to take immediate action to have the explicit photos taken down and to prepare to support potential victims. We are exploring what actions should be taken to best address this form of harassment in the future,” Marine Corps spokesman Captain Ryan Alvis said in a statement.
Brennan founded a military news site investigating defense and veterans issues called ‘The War Horse’. The story was first reported on Reveal, a site run by the Center for Investigative Reporting. The ongoing investigation has caused many officials to remain silent. However, Captain Alvis said that “the Marine Corps is deeply concerned about allegations regarding the derogatory online comments and sharing of salacious photographs in a closed website. This behavior destroys morale, erodes trust, and degrades the individual.”
Gen. Robert B. Neller, commandant of the Marine Corps, had his own view of the situation. Neller said, “for anyone to target one of our Marines, online or otherwise, in an inappropriate manner, is distasteful and shows an absence of respect. I expect every Marine to demonstrate the highest integrity and loyalty to fellow Marines at all times, on duty, off-duty, and online.”