Fighting hackers can be tough
When nude photos of Lindsey Vonn were leaked to websites, a representative for the Olympic skier did not mince words.
“Lindsey will take all necessary and appropriate legal action to protect and enforce her rights and interests,” Vonn’s publicist, Lewis Kay, said in a statement. “She believes the individuals responsible for hacking her private photos as well as the websites that encourage this detestable conduct should be prosecuted to the fullest extent under the law.”
But what would prosecution to the fullest extent look like? While the statement is adamant, the path from here is murky.
Fernando Pinguelo, chairman of the Cyber Security & Data Protection division of the Scarinci Hollenbeck law firm, noted that lawsuits can vary incredibly.
“The problem with this area is it’s comprised of a patchwork of laws. It’s further complicated because you’ve got the federal law, then you’ve got state laws, and even among the laws, it depends on what the issue is,” the New Jersey-based attorney said in a phone interview.
“It really depends on what happened — how did (hackers) access it — in order to determine what the consequence may be.”
As laws vary state by state, Vonn, Tiger Woods and others who have had their photos leaked will find different factors at play in potential lawsuits. In cases such as these, lawyers on both sides could delve into cyberbullying, rights of privacy, celebrities’ rights of publicity, copyright infringements, revenge porn laws and First Amendment rights.
While Pinguelo and his firm are not involved in Vonn’s case, he often also sees claims of harassment added to lawsuits involving data privacy and cybersecurity.
One of the most famous incidents of hacking celebrities came in 2014. Often referred to as “Celebgate,” the massive hack involved more than 500 celebrities, including athletes such as McKayla Maroney and Justin Verlander.
According to the Associated Press, Ryan Collins, 36, of Lancaster, Pa., was sentenced to 18 months in federal prison after he pleaded guilty to a felony violation of the Computer Fraud and
“It really depends on what happened — how did (hackers) access it — in order to determine what the consequence may be.”
Fernando Pinguelo, chairman of the Cyber Security & Data Protection division of the Scarinci Hollenbeck law firm
Abuse Act in October 2016. Edward Majerczyk, 29, of Chicago was sentenced to nine months for hacking electronic accounts and stealing private information in January.
Though the case itself is one of the most famous examples of celebrity photos being leaked, Pinguelo cautioned that the sentencing was not standard.
“In terms of a normalcy, the fact that someone was caught and was able to be prosecuted to conviction and sentencing is unfortunately rare, because as you can imagine, many of these people operate anonymously and they are pretty good at covering their trail,” Pinguelo said.
“It is rare that you’re able to find the person and bring them to justice. While that’s a great example, it’s not really an easy thing to do, and it depends on how sophisticated the person is at covering their tracks.”
In Majerczyk’s case, he was also ordered to pay $5,700 to cover counseling services for one of the affected celebrities, according to the AP.
While celebrities were vehemently upset, pinpointing exact damages under the law can be cloudy.
“If you ask the celebrities, they say it’s very damaging, but from a lawyer’s perspective, that’s not an easy thing to prove,” Pinguelo explained. “We all think the issue is harmful, but it’s how do you quantify it? That’s the challenge.”
As far as prosecution for websites hosting the images, Pinguelo says in most cases it is unlikely that any criminal charges would be brought, and in civil suits, sites could argue their First Amendment privilege. Neither Majerczyk nor Collins was charged with sharing the pictures — punishment typically comes based on hacking or other means of obtaining pictures without consent.
While cases such as Vonn’s garner more media attention, leaked photos are not limited to celebrities. Pinguelo offers advice.
“The first thing you always want to do is to notify the authorities,” he said. “While the photos may appear to be the purpose and they focus the victim’s attention on it, they may be using the other information in a more lucrative way, opening bank accounts, credit cards, etc. To explain that to the authorities, that helps you contain the threat.”