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CA Revenge Porn Case Criminalizes Disclosure of Private Facts

By Jonathan R. Tung, Esq. on August 01, 2016 | Last updated on March 21, 2019

There's a disturbing trend playing itself out in California courtrooms according to Eugene Volokh. The trend potentially criminalizes disclosure of private facts, even if the content disclosed isn't actually revenge porn.

Court applications of the Cal. Pen. Code sec. 530(a) should chill the public. Since when did the disclosure of some private facts of another become a full fledged crime?

The Curious Case of Kevin Bollaert

Although the California statute in question has previously been applied by courts in manners many lawyers and court watchers find perturbing, the most recent case of Bollaert really caught the watchful of Eugene Volokh. Writing for the Washington Post, Volokh details the legal arguments made both by the state and by the defense in the revenge porn case of Kevin Bollaert. In that case, the court found the defendant guilty under California's identity theft law, sec. 502(a) and also sec. 530(a). It's with the latter law that things get interesting.

"Identifying Information"

The facts in the Bollaert case are particularly incendiary because of the revenge-porn element, but further court dicta on the application of sec. 530(a) is bone chilling. Why? Because sec. 530(a)'s language is written so broadly as to technically loop in activities that were clearly meant to be covered by the body of civil-wrongs law -- but by criminal law?

It all gets down to this issue of what "identifying information" is. In Bollaert, one would think that it would be nude photos. But sec. 530(a) doesn't even get into that. Rather, "identifying information" means "any name, address, telephone number", and whole slew of other things as well. And although there's a mens rea element to this criminal statute, aren't these the sort of identifying tidbits that we all use daily? Even of other persons?

Legislative Intent Doesn't Yen With Court Construction

We're usually averse to jumping on the bandwagon, but in this case, it's called for. Volokh has opined that he doesn't think that the California legislature intended to criminalize a wide swath of civil causes of action, but that's how California courts have applied the law. And that's somewhat upsetting -- or it should be.

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