Texas “Cyber Flashing” Laws Could Go Nationwide

Dating in the digital age often means receiving texts, emails, and app messages from would-be paramours. But when these sexting messages contain unsolicited nude photographs, a phenomenon now known as “cyber flashing,” recipients may feel as though they have no legal recourse for this intrusion.

In early 2019, Texas legislators—in cooperating with dating app Bumble—worked to make the Lone Star State one of just a handful of states that can legally protect against cyber flashing. And with Texas’s new law as a guide, Bumble is taking its lobbying efforts to the federal level in hopes of encouraging other states to establish similar laws.

What’s in the Texas Cyber Flashing Law? 

This law, which took effect only recently, classifies cyber flashing as a Class C misdemeanor, punishable by a fine of up to $500. But not every nude image sent constitutes “cyber flashing.” To establish that the sender has committed a crime, the prosecutor must be able to prove that the recipient did not give consent.

This makes Texas’s cyber flashing law different from other states’ laws that criminalize the digital messaging of “lewd content.” While lewd content laws generally focus on the sender’s intent, requiring prosecutors to prove that the sender acted with the intent to provide sexual gratification, Texas’s cyber flashing law focuses on the recipient’s consent (or lack thereof).

The Future of Cyber Flashing Laws  

With Texas’s law as one of the earliest examples, Bumble and other online dating websites are hoping to encourage more states to follow suit. But some attorneys and legislators have cautioned that Texas’s law (and others like it) could run afoul of state and federal constitutional protections and may even potentially criminalize innocent text conversations.

For example, a new mother who sends a text message to a lactation consultant friend and attaches a photograph of her breast could be charged with cyber flashing. This is true even if the lactation consultant was not bothered by the image; because the consultant did not ask for the image or otherwise provide consent before it was transmitted, this conduct could still run afoul of the cyber flashing law as written.

The anonymity of many dating applications could also make enforcing these laws a challenge. Given the fairly low-level penalty for a cyber flashing violation, including the lack of jail time, law enforcement may not be able or willing to devote much effort to trying to track down one specific cyber flasher unless this person has sent images to multiple individuals.

But despite these initial challenges and potential growing pains, Texas leaders are optimistic that this new law will help curb the digital dating abuses that so many of its residents have experienced.