Digital Dissemination: Scalability and Replicability

In response to a case of NCIID, Canadian criminal lawyer Deanne Gaffar commented, “in this day and age, with Internet and digital images which can be shared in a millisecond, you lose control over [nude images] if you’re placing the trust in someone else” (Zeidler Reference Zeidler2014). This quote implies that the affordances of online and digital technology make NCIID a bigger threat, as it is easier to commit and thus more likely to occur. The ability to copy and disseminate non-digital nude or sexual images is limited, at least in part, by the time and effort required to make copies and to physically share them. For instance, when “sex tapes” were recorded on VHS, an act of NCIID might require accessing two VHS players and blank tapes and then individually recording each copy. And disseminating these copies would require, for instance, driving to a victim’s neighbourhood to distribute the videos door-to-door. The video could only be further spread by physically sharing the tape with other individuals; as an Ebony magazine article discussing the above noted victimization of Jayne Kennedy simply put it, before the Internet and digital technology, videos and photographs had to be physically “passed from perv to perv” (Bouboushian Reference Bouboushian2014). On the other hand, digital images are made of binary digits, or bits, that allow information to be quickly shared with unprecedented ease and on an unprecedented scale (Hand Reference Hand2012; Boyd Reference Boyd and Papacharissi2011). Although NCIID is not a new phenomenon, in the digital age a wider distribution of nude/sexual images (to a victim’s family, friends, and coworkers) can now be accomplished with a few clicks on a digital device (e.g., by posting an image on social media).

Digital technology is designed with the assumption that users want their information shared, and thus “the design encourages the widespread distribution of content” (Hasinoff Reference Hasinoff2015, 147). This has led some scholars to refer to digital technology as being “promiscuous” and “slutty” (Calo Reference Calo2015; Chun and Friedland Reference Chun and Friedland2015). This promiscuous digital technology works in tandem with the equally “promiscuous” Internet to allow people from around the world to easily and cheaply access information (Calo Reference Calo2015). The affordances of digital replicability and scalability “challenge people’s sense of control” by allowing for almost instant sharing to multiple people or to publicly available websites (Boyd Reference Boyd and Papacharissi2011, 49). As a Winnipeg Police officer recently commented, “we all know as soon as you’ve uploaded an image that it can be shared hundreds of times within minutes” (Winnipeg Free Press 2017). Likewise, in the House of Commons debates on “cyberbullying” in November of 2013, Peter MacKay described digital and online technologies as making intimate images “difficult to control” and as increasing the “speed and the scope in which statements and images can be made and shared with many others” (Canada 2013). These alterations to scalability and replicability are now being grappled with by victims of NCIID and by the government and legal officials who are attempting to respond to this issue.

In the Canadian case law, judges commonly expressed the belief that acts of NCIID have been made easier to commit and more impactful due to the fact that digital images are easier to copy (e.g., replicability) and to widely share (e.g., scalability). In terms of the ease of replicability, multiple judges refer to the ability of offenders to create impactful privacy violations through the simple click of a mouse. Judges express that “with the single click of a mouse, information can be circulated instantly and globally” (R v DaSilva 2011, at para 33, emphasis added) and that “in this case the instant click of a mouse circulated harmful and damaging material” (R v Fader, 2014, at para 25, emphasis added). These and other cases further hold that online forms of NCIID “can be particularly harmful because the content can be spread widely [and] quickly” (R v NG & GG 2015).

While the ease of the “click of a mouse” could be used to argue that offenders should receive more lenient sentences due to a lower level of intent/planning, many judges argue that the ease of digital sharing requires a harsher response to act as a deterrent to others who wish to commit this easy offence. For example, in R v DaSilva (2011) the judge goes on to explain that a strong sentence is necessary to act as a general deterrent to the “increasingly common” use of new technologies in the commission of crime: “once [digital information is] circulated, the ability to undue [sic] any harm caused, is very limited […] Given the common use of social networking sites and their potential for enormous harm, general deterrence plays a significant principle in this sentencing. A clear message to all users of social networking sites is a valuable sentencing objective in this case” (at para 33–35).

In this case, a sentence of six months of incarceration is justified, in part, by the need to emphasize general deterrence due to the ease with which this act can be committed. Likewise, as part of the reasoning for a sentence of two years’ incarceration in R v Fader (2014),^{Footnote 13} the judge argues that it is necessary for the court to emphasize not only specific deterrence but also general deterrence due to the fact that “harmful and damaging material” can be circulated with “the instant click of a mouse” (at para 25). The judge asserts that this sentence will provide general deterrence as it will “get […] the word out that if people send sexually explicit photos and videos out into the stratosphere, periods of imprisonment are likely” (R v Fader 2014, at para 25–26). It is important to note here that, under Canadian sentencing principles, the use of general deterrence is not allowed in youth cases (Youth Criminal Justice Act 2002); therefore this specific finding would only apply in adult cases, though it may manifest in other—less explicit—ways within youth court cases as well.

The legal rationale of “just one click” that I’ve identified in cases of NCIID can also be found in child pornography case law. Some legal scholars argue that the ability to “gather hundreds of [child pornography] images with the click of a mouse” problematizes assessments of offender blameworthiness that are based on the quantity of images downloaded (Rogers Reference Rogers2013, 1023). They assert that the ease of accessing large amounts of digital child pornography results in the need for “a more nuanced approach that focuses on case specifics […as a] measure of harm” (Rogers Reference Rogers2013, 1027). However, in practice, despite attempts by defence lawyers to use “one click” as a defence—as in R v CWF (2006), wherein the defence argued that “vast quantities of material can be downloaded and saved with one mouse click” (at para 10)—the ease of download and dissemination is often used as an argument for harsher sentences in child pornography case law (Rogers Reference Rogers2013; also see R v TLB 2007 and R v Moen 2006). While possession of child pornography was much more difficult to commit in the pre-digital age—requiring concerted intention, effort, and funds to locate, purchase, and receive pricey magazines, photographs, and videos—the ability for “anyone [to] obtain it at the click of the internet search engine” is often used to argue for harsher sentences to send “a strongly punitive and deterrent message” (R v Moen 2006). It seems that, in both child pornography case law and NCIID case law, the perceived increase in ease caused by “one click” digital affordances often wins out over an interpretation of “one click” as diminishing the need for forethought and thus as lowering offender culpability. Harsher sentences aimed at general deterrence are often utilized to combat user-friendly digital devices that are perceived as making it far too easy for us to share private images. Additionally, it is possible that “techno panic” type thinking influences these harsher responses, as the presence of online and digital technologies in these cases could make them appear more dangerous in all cases—precluding the possibility of considering the nuanced role of digital technology in different cases—and make the harms of image sharing appear novel and in need of an enhanced reaction. The legal discourse seems to represent a widespread, though not universal, argument for punishing cases more harshly due to the affordances of digital technology.

While the above examples show interpretations of the ease of digital sharing as requiring longer sentences to act as a general deterrent, there is still the potential for the user-friendly and tempting qualities of digital devices to support more lenient sentences. For instance, in R v Warrington, Mr. Warrington’s court-ordered apology letter seems to use the concept of “one click” to partially redeem his actions by placing some of the blame on the affordances of digital and networked technology (Port Coquitlam Provincial Court 2013). Mr. Warrington, who disseminated images on social media of an alleged sexual assault that took place at a rave in British Columbia (Stueck Reference Stueck2013), wrote in part:

The technology-focused view of NCIID that Mr. Warrington describes allows the affordances of technology to partially take the blame in this case. He describes the technology as extremely easy to use, thus allowing him to share the images without actually thinking about it—it was just the “thoughtless push of a button.” We might call this the “just one click” defense. This defense deflects blame from the offender by relying on a perspective of technological determinism that sees new technologies as “causal agents” that act on individuals in ways they have “little power to resist” (Baym Reference Baym2010, 24). The case of R v Zhou (2016) demonstrates both the potential and limits of the “one click” defense, when the judge rejects the idea that Zhou’s actions were a quick mistake: “Thought and planning went into posting the photos. Mr. Zhou would have to have chosen which photos he would post, think about the comment he would post with them, and according to the agreed statement of facts, he checked the comments of the viewers with some frequency. This was not a momentary lapse of judgment or a thoughtless one-time mistake. It was a continuing offence. For all of these reasons, I would rate the degree of responsibility of the offender as high” (at para 25–27).

The reasons for sentencing in Zhou demonstrate that while this particular offence was seen as requiring notable planning and revisiting, cases where the posting was more akin to “a momentary lapse of judgment or a thoughtless one-time mistake” (e.g., the few clicks required to share a single image to Instagram without any comment and without returning to check for comments) could be treated with more leniency due to understanding the ease of posting.

This potential for leniency due to the ease of digital copying and sharing is arguably supported by conceptions of digital technology as implicitly “leaky” or “promiscuous” (Calo Reference Calo2015; Chun and Friedland Reference Chun and Friedland2015). This conception of technology has been used by police and “sexting experts” to argue that having nude images non-consensually shared should be the assumed outcome of sending images in the digital age (Zeidler Reference Zeidler2014; Alex Reference Alex2017). For instance, the Thunder Bay Police Service recently published a “reminder” to individuals that “anytime they send nude images of themselves to other people there is always a risk of the photo being uploaded to file sharing sites or social media pages without their consent” (Alex Reference Alex2017). Likewise, the defence in the case of Doe v ND (2016) argued that the monetary award to Jane Doe was too high considering that Doe sent the intimate video knowing that “there [was] always the risk of it becoming public” (Csanady Reference Csanady2016). These responses may imply that sexual images are bound to be disseminated—or that victims should have at least realized the risk^{Footnote 14}—and therefore that offenders’ blameworthiness is diminished. Legal interpretations of the affordance of digital replicability can have significant impacts on understandings of offender culpability, as they influence the level of intent attributed to offenders.

In addition to considering the ease of digital copying, judges also weighed the level of digital dissemination (scalability) when justifying sentencing decisions and determining the gravity of an offence. For example, in R v PSD (2016), the fact that digital images were forwarded to two friends—rather than posted publicly online—was seen as diminishing the gravity of the offence. The judge, here, argues that the difference in dissemination between this case and a case such as R v Zhou (2016)—wherein intimate images were posted on a pornography site and viewed a recorded 1,333 times—is significant: “In the end, I conclude that, while the gravity of the offence in general is significant, the circumstances of this particular case are less egregious than, for example, a case involving significant planning and forethought and resulting in a transmission of identifiable intimate images widely distributed on the internet. The sentence must be proportionate to those considerations” (at para 15).

Likewise, in R v AC (2017)—wherein a woman’s nude photos were sent via private Instagram message to her employer and to several friends from her university—the judge notes “the absence of circumstances that would be even more aggravating. Mr. A.C. posted the photographs once only. He circulated them amongst a rather small number of people” (at para 85). In this case, the judge’s perspective on limited digital dissemination contributes to his decision that imprisonment is not required and that the offender should be given a conditional discharge. However, while the judge in this case understands the workings of digital and networked technology in a way that leads to his perception that these photos were not widely shared, the victim perceived that Mr. A.C. “has shared my body with [the] entire world. Friends, colleagues, classmates, people who I interact with and see every day of my life” (R v AC 2017, at para 51). These different interpretations of the scalability of digital images shared via Instagram message clearly reveals different understandings of digital distribution.

In both R v PSD and R v AC the fact that images were sent to a select few people was seen as making the offences less egregious; however, these interpretations do not fully account for the ways these images could still be saved on various devices and archives—and therefore be at risk for a later leak. Due to the ease of spreading and the fact that digital images are easily saved and shared in the future, an image that is shared with even just one person has the potential to be disseminated or leaked in the future. The judge in R v Greene (2018) takes this fact into account saying that, while Mr. Greene did not widely share the images, “when Mr. Greene sent the video to X’s friend, he no longer had any control over where it subsequently went. This increases his level of moral responsibility” (at para 65)^{Footnote 15}. These varying perspectives on the potential spread of a digital image complicate legal rationales and sentencing decisions influenced by the extent an image has been shared.

The leaky nature of digital images and digital devices creates questions about whether or not we think the law should account for the potential leak and for the potential harm to the victim in the future (these questions will be discussed further in the sub-section on digital memory). The importance of these questions becomes even more pronounced in light of the fact that conceptions of digital spread were even considered as an aggravating factor in a case where images were not actually shared. In a 2017 case in Newfoundland, Kyle Hunt threatened to share intimate photos of his ex-girlfriend on Facebook after she broke up with him. The judge in this case asserted that a strong sentence was required due to the fact that “a present day threat to release intimate photographs through social media sites allows for the dissemination of such photographs on a worldwide basis” and “technology also makes it impossible for the victim to limit circulation or to retrieve the photographs. This modern day form of extortion is much different and more serious than older forms of extortion. The sentencing for such offences must reflect the changes in the sharing of information and the impact upon victims” (CTV News 2017). Although the Crown requested a six-month prison sentence, the judge imposed a nine-month sentence due to this interpretation of the seriousness of digital spread and of crimes involving new technologies.

The responses in R v PSD and R v AC also do not fully account for the potential greater impact of having nude photos shared with a few people that you see every day versus hundreds of people that you may never meet. As the victim in R v AC (2017) put it, her image was not just seen by a few random people, but by “people who I interact with and see every day of my life” (at para 51). The case of R v MR (2017) provides a salient example of the fact that the extent of an image’s dissemination may not be the most important factor for determining the extent of harm caused or the malicious intent of the offender. Here, the images were only shared with the victims’ family members (via email) and were not posted publicly online; however, due to the fact that the victim came from a very traditional religious family, the limited sharing of these images had what the judge describes as an “immeasurable” impact on both the victim and her family (R v MR 2017, n.p.). Thus, judges must be careful when basing the impact of a given case of image sharing on the extent of digital dissemination involved. The impact of a digital image shared with a few people known to the victim will not necessarily cause less harm than an image shared with hundreds of people on a pornography site. Judges in NCIID cases also need to assess several other variables impacting levels of harm in these cases, such as: whether image dissemination took place within a broader context of domestic violence or harassment, whether images were shared along with the victim’s contact information, and how explicit the images are (Dodge Reference Dodge2018).

While the affordances of digital technology make images easier to widely share, it is also necessary to nuance discussions of exactly how much this changes the impact of NCIID and the nature of dissemination in particular cases. For instance, the case of R v Agoston (2017) involves a digital image, but the spread in this case is very limited. In this case, the image is viewed by two people who are shown the image on Mr. Agoston’s cellphone, but the image is never digitally copied or disseminated^{Footnote 16}. On the other hand, the spread of pre-digital images was sometimes quite widespread. For example, in LaRose v Yavis (1993), images were posted in public washrooms, and in FR v AKA (2010), flyers were distributed throughout a neighbourhood. The difference here between showing an image and then having it returned to you versus publishing or displaying an image to a wider audience is therefore not one that is determined by the presence of digital technology in a case. While the affordances of digital technology can allow images to be shared more easily and widely, the substantive impact of these affordances is highly case specific, and a nuanced understanding of digital technology and online platforms to determine this impact.

Digital Memory: Persistence and Searchability

The effects that the affordances of digital technology have had on the persistence and searchability of information have been at the forefront of popular understandings of NCIID in the digital age, as NCIID is now seen as having potentially life-long reputational impacts (Bailey Reference Bailey, Bailey and Steeves2015; Hasinoff Reference Hasinoff2015; Dodge Reference Dodge2016). For instance, during a discussion about revenge porn on MSNBC, one of the hosts begins by asking “how long will it be before we learn that, in this day and age, anything you do in your digital life is forever” (MSNBC 2013). The huge capacity for digital storage and the ease with which digital archives can be searched change both what and how we remember in the digital age. Hand asserts that the affordances of online digital archives are “reshaping individual and collective memories” as they allow “previous thoughts, words, images, and deeds [to] be recalled, reworked, and reflected upon again” (Hand Reference Hand2016, 270).

The impact of these changes on memory in the digital age is further amplified by a changing relationship to photographs. Digital camera technology has become ubiquitous, and the widespread inclusion of cameras as part of smartphones means that, for many of us, our cameras are always with us (Battye Reference Battye2014). As a result of smartphones and social media sites that allow (and encourage) users to share photos, both photo creation and sharing have become an extremely common and frequent activity for many people (Hand Reference Hand2016; Sturken Reference Sturken and Pearl2016). The fact that 350 million photos are uploaded to Facebook per day demonstrates both the ubiquity of digital photo-sharing and the ways that photography has become “networked,” as photographs are now regularly created for the purpose of visual communication rather than for memory preservation purposes (Venema and Lobinger Reference Venema and Lobinger2017; Hand Reference Hand2012). Furthermore, while Sontag (2003, 174) once wrote that “photographs are fragile objects, easily torn or mislaid”, digital photographs are now seen as excessively persistent. In addition, where once most photos were shown to only a few friends and family members, they now easily circulate on social media platforms, websites, and via text and instant message (Battye Reference Battye2014). While the move towards “the structuring of life to create photographable moments” has been underway at least since the introduction of the “Kodak moment,” the social media focus on documenting and communicating our lives through pictures has increased the ubiquity of photography in unprecedented ways (Sturken Reference Sturken and Pearl2016, 100).

The affordances of digital memory create an environment in which non-consensually shared images have come to be seen by many victims as a permanent blow to their reputation (Bailey Reference Bailey, Bailey and Steeves2015; Chun and Friedland Reference Chun and Friedland2015; Langlois and Slane Reference Langlois and Slane2017). For instance, young women now commonly report fears that the sharing of an “inappropriate” sexualized image “could expose them to permanent reputational harm and social ruin” (Bailey Reference Bailey, Bailey and Steeves2015, 29). And these fears are encouraged by police and child protection agencies that advance this claim as a scare tactic to dissuade youth from both consensual and non-consensual intimate image sharing (Karaian Reference Karaian2014; Dodge and Spencer Reference Dodge and Spencer2018). Scholars also express concerns that digital memory increases the impact of NCIID, such as Bates’ assertion that “once a photo is posted online, it is challenging to completely remove from the Internet, which means the harm is continuous and long lasting” (Bates Reference Bates2017, 23; Bailey Reference Bailey, Bailey and Steeves2015; Hasinoff Reference Hasinoff2015). The ability to manage our identities and reputations is an old issue that is reinvigorated by the digital age, wherein online profiles are curated to represent our identities, and information about who we are and what we’ve done can be saved and searched for online (Boyd Reference Boyd and Papacharissi2011; Handyside and Ringrose Reference Handyside and Ringrose2017; Wagman Reference Wagman and Pearl2016; Langlois and Slane Reference Langlois and Slane2017).

While we often think of the act of forgetting something as negative and remembering as positive, in the digital age we hear expressions of nostalgic longing for forgetting (Mayer-Schonberger Reference Mayer-Schonberger2009). These dreams of deletion are spurred by fears of information—such as intimate images—returning to haunt us (Wagman Reference Wagman and Pearl2016; Bailey Reference Bailey, Bailey and Steeves2015). This fear of a digital haunting is strengthened by the assertion, questionably supported yet increasingly common, that universities and prospective employers are regularly sleuthing online and disqualifying applicants who have had nude photos shared^{Footnote 17} (CBC News 2016; Bloom Reference Bloom2016; Maru Reference Maru2018; Angelides Reference Angelides2013). News articles and education campaigns regularly warn youth that employers and university admissions staff will look at their online presence and social media profiles and that they could “miss out on an opportunity or never achieve a goal of theirs” due to having nude photos leaked online (CBC News 2016; Maru Reference Maru2018). The anxieties of digital memory are vividly expressed in the Victim Impact Statement included in R v Zhou (2016): “There was no way I could erase the images off of the computers of the people who downloaded them. There was no way I could prevent these images from surfacing in the future and destroying my career and life that I have worked so hard to build. I have never felt more violated, belittled, and vulnerable” (at para 3).

In response to fears such as these, sites like reputation.com and reputationdefender.com offer to manage your online reputation as it is the “key to success in our digital world” (Wagman Reference Wagman and Pearl2016, 116), and individuals from around the world have begun to demand—sometimes successfully—the “right to be forgotten” (Tirosh Reference Tirosh2017). Scholarly and media discussions of digital memory often cite NCIID as the ultimate example of why we should be concerned about digital archives, affirming the digital intimate image’s role as a menace that will live on forever (Wagman Reference Wagman and Pearl2016; CBC News 2016; MSNBC 2013).

The ubiquity of photography coupled with the affordances of digital memory creates anxieties that “the end of forgetting” (Mayer-Schonberger Reference Mayer-Schonberger2009) might indefinitely extend the harm of having an image shared non-consensually (Dodge Reference Dodge2016; Bailey Reference Bailey, Bailey and Steeves2015; Kitchen Reference Kitchen2015). This understanding of digital memory’s effect on NCIID is one that is commonly held in Canadian case law. Many judges assert that the harm caused by NCIID is amplified by the fact that digital images can exist and continue the violation of NCIID “forever.” In R v Schultz (2008), the judge comments that the “violation of the complainant’s privacy rights may continue indefinitely given the nature of the Internet” (at para 45, emphasis added), and in R v W (2014), the judge comments that “there is the potential that the video will be circulated in the future and be available forever” (at para 20, emphasis added). These quotes demonstrate that many judges see digital memory as increasing the harm of NCIID, because the impact of the act is seen as ongoing. From this perspective, as demonstrated in R v Korbut (2012), the harm of NCIID can be seen as “unquantifiable” (at para 17), resulting in the need to consider not only the harm experienced thus far but also the potential harm the victim could experience in the future.

This perspective is based on understandings of digital images as difficult—or impossible—to control or delete. In R v Korbut (2012), the need to consider the ongoing harm caused is based on the assertion that the images are “irretrievable and may continue to be accessible on the internet in perpetuity—with the potential to revictimize the complainant at some time in the future” (at para 17, emphasis added). Commenting on the inability to truly delete these photos, in R v CNT (2015) the judge asserts that once an image is transmitted “its digital footprint is embedded in binary cement” (at para 11). In Doe v ND (2016), the judge expresses concerns that digital images are “out of the defendant’s (and the plaintiff’s—and the Court’s) control” and that there is no way to know how many times an intimate image is “viewed or downloaded or if and how many times it may have been copied onto other media storage devices (where it may remain) or recirculate” (at para 10). Likewise, the judge in R v Schultz (2008)^{Footnote 18} comments that “the moment Mr. Schultz posted the photographs to his web page, he lost control of them and their ultimate destination” (at para 119). As these cases demonstrate, digital images are widely regarded within Canadian case law as difficult to control and delete and, therefore, as possessing the potential for infinitely lasting harm.

As is the case with conceptions of “just one click” and digital spread, conceptions of digital memory are also influential in judicial reasonings and sentencing decisions. In many cases, digital memory is explicitly described as an aggravating factor in determining the appropriate response to digital forms of NCIID. One judge states that an aggravating factor in the case is the fact that the transmitted image will “forever have a potential for further transmission” (R v PSD 2016, para 13). Likewise, in R v KF (2015), it is reasoned that “the image of AK is forever available. Its distribution through the anonymity of the Internet is an aggravating feature” (at para 7). And in R v BH (2016) the judge finds that “the moral gravity of this offence requires the imposition of a denunciatory sentence which will deter others from such flagrant breaches of privacy that have lifetime consequences. Neither probation or a conditional sentence are appropriate in this matter, they do not reflect the proper principles of sentencing” (at para 27, emphasis added).

In Doe v ND (2016), the influence of digital memory is taken to its extreme, when the judge argues that digital memory not only extends the harm caused, but is equivalent to multiple assaults: “[due to the] potential for the video still to be in circulation, it is appropriate to regard this as tantamount to multiple assaults on the plaintiff’s dignity” (at para 57). These kinds of responses aim to punish offenders based not only on the harm caused but on the potential future harm that could be incurred in light of digital memory. R v Agoston (2017) demonstrates that a lack of perceived digital memory can likewise influence case outcomes as the judge holds that—because images were only shown to others on a cellphone rather than distributed online—the offence “falls on the less serious end of the spectrum” because the images will not be available “forever” (at para 17). Mr. Agoston received a sentence on the very low end of the spectrum for these cases, receiving a conditional discharge and one year probation.

The above examples demonstrate that judicial understandings of digital memory have considerable effects on assessments of offender culpability and on ideas of appropriate sentences in cases of NCIID. Thus, it is important to scrutinize how judges may take up ideas about digital memory in ways that may not always get at the nuances of digital and networked technology’s affordances (not to mention the fact that non-digital photographs have the potential to be saved and redeployed in the future as well). For instance, in the Agoston case, the images are seen as completely deleted from the cellphone and therefore as no longer a threat, but this does not account for the ways our “promiscuous” (Calo Reference Calo2015) devices tend to archive—and sometimes leak—even those images we “delete.” On the other hand, common assertions that a digital image will exist and be accessible “forever” may overstate the potential future of an image in certain contexts, as images may eventually disappear into the increasingly vast amount of digital data available online (Hand Reference Hand2016). The immortality of a digital image is often at the mercy of algorithmic digital archives, and its persistence has the potential to become increasingly irrelevant—resulting in its effective “disappearance” (Hand Reference Hand2016). As Hand describes, networked technology makes information “permanently accessible in principle” but the reality is that some information remains “dormant” and is vulnerable to “decay or deletion” (Hand Reference Hand2016, 271). For instance, a nude image non-consensually shared on a pornography site can quickly become like a drop in the ocean of digital nudes. While the anxiety of being unaware of an image’s future may persist, it is important to note that digital memory is not always as functionally everlasting as it may feel (Karaian Reference Karaian2016; Hand Reference Hand2016) and that the particular future of an image will also be dependent on factors such as whether it is able to be removed from search engine results. Regardless, it is clear that various understandings of digital memory have significant impacts on cases of NCIID. While the increased harm of NCIID due to the affordances of digital memory is often treated as self-evident in both legal and governmental responses, a more nuanced understanding of the role of digital technology demonstrates the need to assess the impact of digital technology on a case-by-case basis.