Is hacking a celebrity’s nude photos a “sex offense” in Virginia?

No, hacking a celebrity’s nude photos does not appear to be a sexual offense in Virginia under the current statutory scheme.

In response to this week’s massive disclosure of celebrity nude and revealing photos, Lena Dunham, creator and star of HBO’s Girls, attempted to remind the Twittersphere that the hackers were sex offenders, not mere hackers:

Ms. Dunham’s charge seemed to ring true with a lot of people. Her tweet was mentioned with approval during the first hour of NBC’s Today show as well as in a number of op-ed pieces on the scandal. As a legal analysis, however, Ms. Dunham’s assertion is a lot less tenable.

Hacking into a celebrity’s iCloud account is likely a federal crime, as shown by Christopher Chaney’s ten-year sentence following his guilty plea stemming from his release of nudes from celebrities including Scarlett Johansson and Mila Kunis. Mr. Chaney was charged under the federal wiretapping statute and Computer Fraud and Abuse Act, 18 U.S.C § 1030 (“CFAA”).

The Virginia statutes covering wiretapping and computer crimes, the Virginia Interception of Wire, Electronic or Oral Communications Act, Va. Code §§ 19.2-61 to 19.2-70 and the Virginia Computer Crimes Act, Va. Code §§ 18.2-152.1 to 18.2-152.16, respectively, are very different from the federal statutes. Consequently, an analysis of the facts of Mr. Chaney’s case under Virginia law instead of federal law is too arduous to consider here. Regardless, I think it is safe to  assume that Mr. Chaney could have been prosecuted under the equivalent Virginia statutes.

A sexual offense is a whole different level of transgression, as evinced by the fact that sexual offenders have their name and address listed in a federal website searchable by the public. This website links the individual state sexual offender databases.

In Virginia, sexual offenses are set out in the Sex Offender and Crimes Against Minors Registry Act, Va. Code §§ 9.1-900 to 9.1-922 (the “Registry Act”). The Registry Act establishes Virginia’s sex offender registry and specifies which offenses require registration. Id. §§ 9.1-900 to 9.1-902. Not surprisingly, the Registry Act does not require registration for a violation of the Virginia Computer Crimes Act. See id. § 9.1.-902. Notably, the Registration Act does not require registration for the criminal statute perhaps most on point—section 18.2-386.2, prohibiting the sale of nude images of another with the intent to harass. See id. § 9.1.-902. Nor does the Registration Act require registration for violations of any of the obscenity production or distribution crimes, Va. Code §§ 18.2-372 to 18.2-389, unless the obscenity crime involves minors. See id.

I am not a criminal prosecutor. I suspect that an experienced prosecutor in the Commonwealth Attorney’s office may be able to come up with a charge that fits the facts of the situation, as far as they are known at this time, and qualifies as a sex offense. Barring such creativity, however, it does not appear that the hacking of a celebrity’s nude-photo database qualifies as a sex offense in Virginia.

Disagree? Let me know in the comments!

 

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