Revenge Porn Operator Guilty In California Cyber-Exploitation Case

By Joyce E. Cutler

Feb. 4 — A state jury found a San Diego man guilty of extortion and identity theft for operating a website that allowed people to post thousands of explicit photographs of women and a second site that required payment to take down the images.

A California Superior Court, San Diego, jury deliberated two days to find Kevin C. Bollaert guilty on six counts of extortion and 21 counts of identity theft for running ugotposted.com, in which anonymous posters were required to include the subject's full name, location, age, Twitter and Tumblr account information and Facebook profile link.

Victims said they were harassed via social media and by phone calls, including calls to their workplaces. Those who complained to the site were directed to changemyreputation.com, which charged $250-350 to remove the photos.

“Bollaert's actions are illegal and they will not be tolerated in California. And if you run a website like this, you're going to go to prison,” California Attorney General Kamala Harris (D) said in Feb. 3 statement. “Just because you're sitting behind a computer, committing what is essentially a cowardly and criminal act, you will not be shielded from the law or jail.”

Defense counsel Emily Rose-Weber, with the San Diego Public Defender's office, couldn't be reached for comment.

Professor: Federal Criminal Law Needed 

Mary Anne Franks, a University of Miami law professor who has followed the revenge porn issue, said the Bollaert case appears to be the first criminal conviction of a revenge porn site operator.

The Federal Trade Commission prohibited Jan. 29 another revenge porn site operator, Craig Brittain, from engaging in the business of nonconsensual pornography (In re Brittain, FTC, File No. 132-3120, 1/29/15). And, Franks said, the FBI is prosecuting revenge porn site owner Hunter Moore, who is awaiting a March 24 trial on his indictment for federal computer fraud and identity theft charges (USA v. Moore, C.D. Cal., No. 2:13-cr-00917, order continuing trial date 11/24/14)

“While all of these cases indicate great progress against the destructive practice of non-consensual pornography, there is still a great need for a federal criminal law against the conduct that would assure consistency in these cases and achieve maximum deterrence. The harms of non-consensual pornography can never be fully addressed after the fact,” Franks said in a Feb. 3 e-mail to Bloomberg BNA.

Existing Law Used 

Franks said one of the interesting things about the Bollaert case is he was prosecuted under California's existing felony identity theft and extortion laws, rather than the state's new revenge porn law, a misdemeanor.

Bollaert, after a six-month investigation, was charged December 2013. The nude photos and other personal information were posted without the victim's permission in violation of Cal. Penal Code § 530.5, which covers identity theft, and in violation of Penal Code § 653m(b), which addresses online harassment. Cal. Penal Code § 520 makes it illegal to commit the crime of extortion, which includes obtaining money through the threat to reveal a victim's secret.

Bollaert told investigators that he made around $900 a month from advertising on the site, and records obtained from his changemyreputation.com PayPal account indicate that he received about $30,000 in payments, Harris said. The sites operated December 2012 to September 2013.

Bollaert remains in custody pending his scheduled April 3 sentencing.

Revenge Porn Laws 

California in October 2013 became the first state to enact legislation (S.B. 255) that makes it a crime to distribute an image of a person's intimate body parts that was taken with the understanding the image would remain private. The statute, Cal. Penal Code § 647, was effective immediately.

The conviction “doesn't offer any guidance about how California's new revenge porn law will play out,” Franks said.

In fall 2014, a man was sentenced to a year in jail for posting nude photos of his ex-girlfriend on Facebook, marking the first successful conviction by the Los Angeles City Attorney under the revenge porn statute (People v. Iniguez, Cal. Super. Ct., No. 4CA05206, complaint filed 11/3/14).

Sixteen states have laws addressing the practice of non-consensual pornography, Franks said, “but the definitions, penalties, and exceptions vary considerably across jurisdictions.”

Deputy Attorney General Tawnya Austin prosecuted the case. Rose-Weber represented Bollaert.

To contact the reporter on this story: Joyce Cutler in San Francisco at jcutler@bna.com

To contact the editor responsible for this story: Tom O'Toole at totoole@bna.com