Sending or storing naked pictures? You might be breaking the law

December 17, 2022

By Kim Komando

People search sites scour public records to get information on you. This includes your full name, address, phone number, family history, police records, relationships, employment information and more. Tap or click here for instructions on removing your information from these invasive sites.

If you or someone else has ever taken a suggestive photo, that could also be floating around the internet. You must be very careful when sharing these.

It can get worse. Depending on where you live, sharing or even storing your most private photos, even with people you trust, can land you in legal trouble.

What is considered obscene?

According to Cornell Law’s Legal Information Institute, obscenity is a category of speech unprotected by the First Amendment.

Here’s what obscenity entails:

• Lewd, filthy or disgusting words or pictures.
• Indecent materials or depictions, unless they’re part of speech or artistic expressions (at which point there are still restrictions).
• Commercial pornography is protected by the First Amendment as long as it doesn’t break obscenity laws or depict minors.

Each state has its own laws governing obscene materials. U.S. courts use a three-pronged test, commonly referred to as the Miller test, to determine if a given material is obscene. Obscenity is defined as anything that fits the criteria of the Miller test, which may include visual depictions, spoken words or written text.

Obscenity is one of the most controversial areas of First Amendment law.

RELATED: Simple ways to hide your risque or otherwise personal photos

How does this affect your private photos?

What you store on your phone or computer should be fine, but things can get murky once you share it with someone else or simply transfer it to another device. Even “sexting,” or sending lewd photos to someone, could get you in trouble.

What you see as sharing, the law can view as publishing. Even uploading your content to the cloud can constitute publication.

Look up your state’s laws on obscenity and distribution/publication. There is no blanket rule.

Your best bet is to keep your risque photos exactly where you took them — on your phone. And to be extra safe, blur or crop out your face and any identifying features such as tattoos and birthmarks.

Check the background of your photos. Is there a painting or clock that someone who knows you will recognize? Blur that out, too!

If your phone automatically backs up your photos to the cloud, you may consider getting a “dumb” camera (one with no network connection) and using that for sultry images. Or use an old phone that’s not connected to any network. This will also protect you from exposure if your primary phone gets hacked or lost.

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